who's afraid of legal pluralism?

WHO'S AFRAID OF LEGAL PLURALlSM?Franz von Benda-BeckmannJOURNAL OF LEGAL PLURALISM2002 - ne. 47legal phenomena or systemswould be "melted down" (Moare 1978a: 81). In myview, this argument confuses the discussion about the theoretical possibility of legalpluralism with the question of what criteria make (any) normative ordering 'legal'(see also De Soua Santos 1987). Obviously, as Moore (2001: 106) says, "theagglomeration of Ihe whole normative package... has to be disaggregaled, idenlifyingIhe provenance of rules and controls". But Ihis cenainly can be done, and for moredislinclive features than provenance and contro\. Obviously, a conceplualisation oflaw open lO legal pluralism widens the range of legal phenomena. 24 BUI Ihedimensions of varialion, which I have discussed earlier, show that an analYlicalconcepl of law does not mean that crucial differences between legal phenomena orsystems would be 'melted down'. lhat 'anything' would be law, or Ihat anythingcalled law would be 'the same'. On Ihe contrary, it is the strenglh of an analyticalconcept that it provides a starting point for looking at similarities and differencesin several dimensions of varialion in a consislent way, and therefore provides amuch better perspeclive on differences in form and funclion Ihan Ihe stateconnectedconcept. In particular, il also allows the descriplion and analysis ofdifferences within state law which also exhibits considerable variation in lerms ofdegrees of instilUlionalization or mandaloriness. These differences are obscuredrather Ihan broughl 10 attention by Ihe implicit homogeneily of law as state law(see a1so A. Griffnhs 2002).Logical problemsLasl but nol least, logical considerations argue againsl a state-Iaw nexus. Using aconcept of law in which the direct connection to the slate is a constitutive elemen!means ending up with a tautologous concept of law. The lypological models of lawwhich link law directly to political organization or sanctioning power are more orless all based upon the ideas of Austin's analytical jurisprudence. In this model, asalready Maine has shown (1914: 342, 353, 362), the concepls of law, rights and dutyare logically dependent upon the concept of the sovereign. In Austin's construction,24 Tamanaha's recent (2000) turn of mind is rather ironie. "This may beunpalatable lO socio-legal scholars because it threatens a proliferation of kinds oflaw in a social arena, and because it grants remarkable authority to social actors togive rise to the existence of law" (2000: 319,320). But wasn't it just theconsequence of conceptualising law in a way thal allowed for legal pluralism lhatthere was more than just slate law in a social arena, and that it indeed grantedremarkable authorily to social actors, whiJe it was Tamanaha himself (1993) whowas so afraid that lhinking in terms of legal pluralism would lead to a proliferationof too much law?- 56 ­the sovereign itself was nol constituted by law but was caracterized by its "immunityfrom control of every other human superior; its reslrictions are not of a legal kind butof 'positive moralily' ". Later authors replaced the rules that constituted sovereigntyand sanctioning power by (constitutional) legal rules, but retained lhe logicaldependence of lhe concept of law on the power of sanctions. 25 The rules pertaining tothe power of sanction lherefore are not covered by the concept of law; lhey become"legal rules per se" (Geiger 1964: 161). The consequence is circular reasoning:Rules are legal if issuedlsanctioned by a legal institution; a legal institution is onewhich issues or sanctions legal rules (F. von Benda-Beckmann 1986: 106).26 What is,legitimale' is not covered by lhe definition. 275. Conceptual alternativesThe arguments advanced against a conception of law thal can cncompass non-slatelegal forms thus are not convincing. The alternatives in any case seem to be muchless convincing.2S As L. Fuller (1964: 143) and Galloway (1978: 82) have convincingly argued,also Hart's (1961) altempt to distinguish legal from non-legal societies by means ofsecondary rules is a "mild transformation of Austinian doctrine". These secondaryrules are also primary rules, pertaining to one domain of socio-political Iife, lheinstitutionalisation of Ihe exercise of political power through lhe interpretation andapplication of primary rules. See also Bohannan's (1967) similar notion of "doubleinstitutionalisation" .26 The tautology is evident when Geiger who has elaborated probably the c1earesttypology of norms, writesThis only seerns to be an exception from Ihe basic principie jusIelaborated. For how could rules with such content [i.e. penainingto the conslitution and procedures of courls/sanctioninginstitutions] be somelhing other than legal rules as their subjecImaller onIy emerges with lhe development of a legal order (1964:161).21 Compare lhe similar construction given by Hoebel:The essentials of legal ~oercion are general social acceptance ofthe application of physical power, in threat or in fact, by a'privileged party, for a legitimate cause in a legitimate way, and ala legitimate lime (1954:27).- 57 ­