who's afraid of legal pluralism?

WHO'S AFRAID OF LEGAL PLURALlSM?Franz von Benda-BeekmannJOURNAL OF LEGAL PLURALISM2002 - nr. 47eonstitutes 'differenee'? Third, 'how mueh different law' has to be involved, arule, a meehanism, an order or system? And fourth, what is meant by 'coexistenee'?,. PluralismThe idea of legal pluralism was an extension from !he analysis. ofdualism/pluralism in colonial societies where it indicated asymmetrical power(and race) relationships between the white minority and the indigenous majority.Used first for characterising colonial economies, it was extended toO cultural andsocial pluralism (Boeke, Furnivall, Smith).32 Talking about 'legal pluralism' in asense was a simple extension of this conceptual usage. However, in the firslsystematic treatment (Vanderlinden 1971), the implict complementary, even ifasymmetrical, character of such pluralism and its assumed or legally prescribedone-to-one relation between law-culture-ethnieity 33 was gradually broken up, byfocussing on the paraUel or duplicatory nature of legal pluralism. This drewattention to lhe faet that a same situation (and implictly the same people) could besubjeet 10 or be confronted with more than one legal order or meehanism, andthat people's actions could not be simply subsumed under 'their' law.1 think that it is useful to reserve the concept to the duplicatory, parallel characterof legal forms or mechanisms, to distinguish it from more general andencompassing terms sueh as complexity or multiplicity. The question is:duplicatory 10 what? Vanderlinden originally (1971: 20) had stated that it wouldbe useful to reserve 'pluralism' to a situation "where different legal mechanismspertained to the same situation" (see also Van den Berghe 1973). Thisconeeptualisation had been eriticized by J. Griffiths (1986), saying t!lat referenceto a 'same situation' was not usefuI beeause the notion of 'the same' wasconstrueted by normative categories. While this certainly is the case, the eriticismis miseoneeived. It results from Griffiths' particular understanding of thedifference between law as objeetified normative meaning (ideological, andtherefore not counting as 'real') and 'real' law/legal pluralism (see F. von Benda­Beekmann 1988, 1997).34 Moreover, it seems to confine lawllegal pluralism tothose aspeets of law which attach eonsequenees .to 'faets'. But eonstitutive andeognitive categories are also part of law. Geertz's (1983) often quoted statementof "Iaw as one way of imagining the real" draws attention to the faet that law alsoconsists of cognitive coneeptions, and that with the help of legal conceptions'faets', or as I have said (1979, 1986), 'situation images', are established. 35 Legalpluralism should be seen to extend to al1 elements of law, to eonceptualisations oflegally constructed situation images, to standards of relevance and toconsequences.Take the instance of 'killing' as 'the same' situation. Different legal systems may,of course, have different eonsequences attached to such a situation image. But theway in which sueh situation image itself is constructed with (a.o.) legalassumptions about causality and evidenee can also be different. Just think ofdeaths caused by witchcraft. Contrariwise, what in one body of legal thought is'killing' may be 'accidental death' in the other. But we can also envisage that'killing' and 'consequenees' are more or less identical in two different legalsystems, yet different beeause they are elements in different systems, havingdifferent bases of legitimation and often, through not necessarily so, differentauthoritiesfor dealing with sueh cases. Or take the legal treatment of kinshipobligations. The nature of obligations may vary between legal systems, but somay the definition of what kinds of persons are 'kin'. Or take the inslance of'Iand rights'. Rights may not only differ in charaeter and distribution over rightholders,also what 'Iand' ¡s, may be defined differently in different legal systems.With Woodman (1998) 1 would see no reason why all sueh situations should notbe treated as instances of legal pluralismo But it tells us tllat in order to seepluralism as duplicatory in relation to '!he same', we must ultimately relate32 Van den Berghe (1973) gives a good aceount of this intellectual history of"pluialism", as well of as lhe other intelleetual history rooted. in Americanpolitical theory where pluralism refers to an organizational plurality of relativelyautonomous (independent) organizations within the domain of the state" (Dahl1982:207). Starr and Collier's strange critique of other wrilers' assumptions aboutlegal pluralism seems to refer to that tradition (see F. von Benda-Beckmann 1997:14).)3 See Greenhouse' s critique of the "corollary relationships between !heorganisation of legal orders and an on-the-ground schema of cultural identities(1998:65).34 Woodman (1998: 35, 37, 38) seems to make the same point, although he,similarly to Griffiths, seems to hold that in order for rules to be observable associal fact sorne extent of significance is required, rather !han a form of existenceas I have argued before. But l would hold that also rules not at all followed aresocial facts.35 See F. von Benda-Beckmann 1979. Barkun 1968, Cancian 1975, Von Wright1974 also emphasise the cognitive elements in law/rules. This should not Jet usforget that legal conceptions also provide standards of evaluntion of permissibleand valid action and transaction, and that others indicate what should or must (nol)be or be done, rather than imagine what has been,or is being done.- 60 ­- 61 ­