who's afraid of legal pluralism?

WHO'S AFRAID OF LEGAL PLURALlSM?Franz von Benda-BeckmannJOURNAL OF LEGAL PLURALlSM2002 - nr. 47For so much of our sense of what law 'is', is bound up with, and has been createdthrough, law's association with a particular history - early on, the emergence ofsecular governmenl in Europe; laler, lhe managemenl of colonial e"pansion"(1998: 98). By using the word law for normative orders differenl from state law,Roberts argues, one would impose the weSlern Eurocenlric concept of law on lhem,jarnrning other peoples' normalive ideas/systems into westem categories and therebydislorting lhem. I do nol lhink thal this is a convincing argumenl.lt certainly is the case tha.t many such ethnocentric imerpretations and distortionsof other peoples' legal syslem, 01' of single inslitutions sueh as marriage 01'properly relationships, have occurred. Much of the lilerature in the ]970s hasdeconslructed such transformalions, going so far as to speak of a 'creation' ofcuslomary Jaws. In more sophisticaled analyses, lhis has led researchers lOdislinguish between the kinds of law interpreted and used in local settings and forinslanee in colonial courts, drawing attention to the conte"tualily of law insociety.21 lt musl also be admitted that in naming concepts such as law, one cannotescape completely from ethnocentric influences. Sorne bias may be inevilable (seeGoldschmidl 1966: 93; F. von Benda-Beckmann 1979: 17; Giddens 1984: 284).Vet it would also be naive lo maintain lhat social scientists could not dislaneethemselves from lhe meanings which have been developed in their own society,and lhat lhey would necessarily be forced to adopt (01' keep running after) thosedefinilions provided by powerful 01' hegemonic agems. Why should one argue likethis at all? Why should one treat law so very differently from other categories weuse for eomparative purposes: religion, politics, marriage, and property? Why isit so impossible 10 lake distance from lhe parochial underslanding of law anddevelop it ¡mo a wider category usefui for looking at differences and similaritiesbetween dífferem historieal manifestations of law? Isn't it Roberts himself whofirst imprisons the word law in lhis parochial, Eurocentric and unhistorical way,so much that it would not even encompass all historical manifestations of 'statelaw'. and then poinls lhe finger at this ethnocentrie prison?22 Apparently, such21 Clammer 1973, Chanock 1985, Snyder 1981. For Minangkabau, see F. vonBenda-Beckmann 1979, K. von Benda-Beckmann 1982, 1984. See alsoWoodman's distinction belween lawyers' and sociologislS' customary ]aw (1987).Long before lhese discussions emerged in Anglo-American legal anthropology,the point had been made by the Dutch scholars of adat law in Indonesia whodistinguished between "adat folk law" and "Iawyers adat law". Van Vollenhoven1909, F.O. Holleman 1938. See also J.F. Holleman 1981.22 Snyder's critique is similar. Comaroff and Roberts (1981) assume that anyconceplion of Jaw is necessarily based, ultimately, on concepts of western legaltheory (Snyder 1993:8). Presuming lhal any conception of law is inevitablyauthors cannot, or do not wam to escape that prison by distinguishing a concept asa sciemific device characterized by properties from descriptions of cultural,social, polilical phenomena. As 1 have written earlier (1997), Chis is a refusal totake analytical distance from the dominant legal ideology in which law and stale aredirectly connecled concepnially.Moreover, slatemenls condemning the use of law and legal pluralism on thesegrounds are frequently apodietieally and unsupported by an analysis of the workof scholars who allegedly, by using law, incorporate ethnoeentric underslandingsinto lheir wrilings. It is by no means that case that researehers during the pasl 30years would usually have lranslaled certain characleristics of 'western laws' ­such as their ideologies of court decision making (rules determine outcomes), thefunctional differentiation of adjudication, the differentiation belween Jaw andpolitics - imo their reading of normative orders in the non-western world.Proponents of a wider analyiical concept of law e"plieitly formulate the propertiesof the coneept in a way that does not inelude ethnoeentric British, Minangkabau 01'Barotse elemems ¡mo the definilion of law but sees them as varialions. In fact, itis only with the help of analytical concepts that alIow us to pereeive, analyse andattempt to e"plain the similarities and differences between British, Minangkabau01' Barotse normative orders. But sueh attempts to develop comparalive analyticalframeworks are usually not discussed at all. Aecusing them of ethnocenlricity inmy view is a case of projeclion of lhe writers' own biases, for they do exactlywhal they aceuse olhers of. They impose their ethnocentric legal ideology on otherpeoples' normative orders and e"elude anything from being 'legal' that does notconform to lhat ideology. 23The meiting down 01 difference argumentRelated to lhe elhnocentricilY argument is the often heard argument, thal byembracing the nolion of legal pluralism !he eoncept of law would become too wideand could comprise "anything" (Merey 1988), and that crucial differences betweenWestern, they rightly erilicise the misapplication of Western legal theory butunnecessarily é",c1ude the possibílity of a more adequate comparative sociology oflaw (1983:9).23 Another weakness of lhis Hne of thought is that it is based upan 'false comparison'(Van Velsen 1969). The measuring stick for description and analysis is taken fromethnoeenlric legal ideology. This means that such a concept would not even be sufficientfor a description and analysis of the functioning legal system from which lheideological descripiive elements are taken.- 54 - - 55 ­