who's afraid of legal pluralism?

WHO'S AFRAID OF LEGAL PLURALlSM?Franz von Benda-BeckmannJOURNAL OF LEGAL PLURALlSM2002 - nr. 47in relation to feelings of justice of a majority of the population, is an empíricalquestion.4. Law and {he stateMost of these consíderalions are relevant, whelher or nOl one defines law inconneclion with the slale. But they reappear in the discussions on whether lhe linkwith the slale should be buill into the concept as a conslant crilerion or beregarded as one variation. In the following, J shall try lo capture the differemargumemations.EvoLuTionis/ assumpTionsMany anthropological, soeiological and legal science underslandings of theevolution of social and political organisalion saw law and legal systems as themost advanced and civilised form of normative ordering and ralional rule guideddecision making. Regarding social and political organisation discovered in the 19'hand 20'h centuries which had no clear hierarchically organised (state-like) politicalsystems, where no courts or clearly recognisable lhird party instilutions wereclearly institutionalised, which had no wrillen rule syslems,' and in whichnormative knowledge was not sharply differentiated, lhe queslion of whether suchsocieties had 'Iaw' presented problems to many European observers.In much evolulionisl legal anthropology around the turn of the 19,h century, thedislinction law - non-Iaw was a non-issue. Maine (1861) spoke of Ancien! Law,Bachofen (1861) of MutterrechT,and also the German scholars like POSl andKohler did nol find it difficult lo use law in relation lO lhe normalive systems oflhe socielies discovered in Afriea and Asia (see also Schott 1982 for Germanelhnological jurisprudence). Differences belween types of law in their view couldbe marked by adjectives (ancienl, tribal, and primilive) that characterised lhespecific nalure of lhese laws. These aUlhors saw dramatic changes and evolutionof legal systems within the overall category of law, aware of a wide range ofvariable empirical manifeslalions of law though time and space.Later evolutionist wrilers adopled a different approach. They held lhat thesesocieties had nol yet reached the state of political and normative organisation thalcould be called state anq law. They developed evolulionist typologies of normsand decision making processes. The crucial crilerion used for making thedislinctions between such law and earlier forms of norrnalive ordering was lhedifferemiation and instilutionalisalion of rule making and sanctioning inslilUtions.- 52 ­We then see an evolution from unsanctioned custom, to diffuscly sanctioned socialnorms, early forms of near-law to the state legal systems as they had developed inEurope (see Diamond 1935; Von Trotha 2000).Many later anthropological ~nd sociological wntmgs about law retained theevolutionist assumptions, but in a watered·down fashion. Functional equivalentswere sufficient, for instance for L1ewellyn and Hoebel (1941), Hoebel (1954) andPospisil (1971). Law remains directly tied to political organisation, but th.ispolitical organisalion need not necessarily have tlle character of a state. No~ dldthe 'pro tanto officials' need to have the character of a state court. BUI the loglc ofdefinilion,lhe dependence of law or the legal on organised sanctioning, was lhe~same (see F. von Benda-Beckmann 1986; see also Tamanaha 1993, 2000). 11should be noted, though, thal, perhaps with the exception of Pospisil, lheseauthors did not consider eonditions of overl legal pluralism. It is uncertain whatlhey would have concluded when 'real' stale instilutions co-existed with the typeof third parties whicll otherwise would have fulfilled lheir crileria for legalness. Jam therefore not eertain lhat Malinowski and olher early legal anthropologistswho accepte'd 'primitive law' as law should be regarded as the intellectualanceslors of the concepl legal pluralism (Tamanaha 1993). In my view, the lrueintelleclual ancestors are ralher lhose wrilers such as Weber 1U and Ehrlich (1913)who did nol take lhe normative claims to lhe legal monopoly of the state forgranted in theorelieal principie (see also J. Griffilhs 1986).EthnocentricityAnolher, yel relaled, argument againsl defining law withoul a conneclion to lhe state,or against developing law into an analytical comparative calegory, is theelhnocentricilY argumento According to Roberts (1979, 1998) using the concept oflaw for comparative purposes "means remaining implicated in the parochial scene.19 11 is characteristic for lhe writings of Austin or Hart. On Austin, see alreadyMaine 1883. See also Galloway 1976, F. von Benda-Beckmarm 1986.lO A good case eould be made, for instance, for Max Weber, rarely quoted in thisCOnlext (bUI see Kidder 1983). Weber conceptualised law through sanctioningrnechanisms, a slaff acting for the larger social whole. But his law was notnecessarily connected to the state, and it was not necessarily exclusive.."lt doesnot constilule a problem for sociology", Weber wrole (1956:23) "to recognize[acknowledge the possibility of] the co-existence of differem, mutuallycontradiclory, valid orders". For him there was no conceptual exclusivity of l~wfor slate-Iínked and -supported normalive order (1956:25).- 53 ­