who's afraid of legal pluralism?

WHO'S AFRAlO OF LEGAL PLURALlSM?Franz von Benda-BeckmannJOURNAL OF LEGAL PLURALlSM2002 - nro 47research focuso Moreover, in order to study the role of plural legal orders in andfor the Iife of individuals, we need 10 sludy the social processes through which theplural legal orders in which they interact become involved and are reproduced inolher contexlS of interaction.Concluding, one should make c1ear that one should clarify at which layer of socialorganisation or which moment in processes of structuralion one speaks: of legalpluralism as an outcome of social processes, as a context for social interaction, asbeing reproduced in interactions in different interaction settings and locales, etc.Only then can be seen to what extem, and in which socio-political or geographicalspaces, legal forms are plural, individuals are 'multilegal' and objects and socialrelationships 'multi-normatíve' (Fo and K. von Benda-Beckmann 1991,1999), andto what extem one can generalize from any such layer or interaction setting forthe wider existence and significance of plural legal constellations (F. von Benda­Beckmann 200Ia).8. The bogeyrnan of the legal pluralistsBeyond the threshold of the yes or no to legal pluralism, there is li!tle uniformity inthe conceptualisation of law, or legal pluralism, or about the possible reJationsbetween such plurality and social organisation and interaction. While there iswidespread agreement, that social scientific concepts of law shOl~ld nol be takenover from the normative and ideological self-descriptions of one's own legal systemauthors as different as Griffiths, Roberts, Tamanaha, Moore, Merry or myselfwould agree on this the further consequences drawn, as to the conceptualisation oflaw and/or legal pluralism differ widelyo AIso, authors whose theoreticalunderstanding does allow for legal pluralism, end up with widely divergent conceptsof law: see for instance Griffiths, Woodman, Pospisil, Tamanaha or myself. 44 Thereare also considerable methodologicaI and theoretical differences across the legalpluralism lineoThe positive acknowledgement and use of the concept of legal pluralism alsocannot be associated with one specific social science or legal science. Whateverthe intellectual history of the concept may be,45 nowadays, it is used, and44 Tamanaha (1993), who besides Roberts has been rather instrumental in creatingthe bogeyman of legal pluralists, is a nice example because he, besides Roberts,was among the creators of that group, and ,now has entered il.45 Obviously, we would need a closer look into the social history of the concept oflegal pluralism, and the different meanings given to il. For reconstructions of the-72­criticised, by many, in anthropology, sociology and politica! and lega! science, andthe use of the concept no longer tells us much about the disciplinary background ofacademicso In legal science, anthropology and sociology there are many who usejt, and many who do not use it, and the use or non-use tells us very Httle abouttheir diverging methodological and theoretical preoccupations. 46 This division ofminds crosscuts the boundaries between anthropology of law, sociology of lawand legal scienceo The use of the term lega! pluralism certainIy no longer is anexclusive identity marker for legal anthropologists. 47 I certainly protest Roberts'position on what legal pluralism in the academic world is about. In his view, "lheprovenance of legal pluralism is unambiguously a creature of lhe law school"(Roberts 1986, 1998; Fuller 1994).48 This seems to be rather far-fetched andempirically questionableo While there are academic lawyers who have discoveredlhe concept of legal plura1ism and use and wrile aboul lhe term, the majority of legalhistory of 'legal pluralism', see Griffiths 1986, Merry 1988, Vanderlinden 1971,1989, 1998; de Sousa Santos 1987; F. von Benda-Beckmann, 1994, 1997; C.Fuller 1994; Tamanaha 1993, 2000; Snyder 1993; Woodman 1998; Ko vonBenda-Beckmann 2001b; Ao Griffiths 2002046 Different importance is given lo the issue, anlhropologisls usuallybeing lessgiven to lengthy conceptual discussions, see Geertz 1983; Moore 2001 or Nader2002.47 See on the one hand Von Trotha's evolutionist denial of the usefulness of theconcept, and on the other hand Cotterell's (1995) moderate view from legalsociologyo In his discussion, COlterell concludes that sociology of law may be bestserved at the present stage of its development by a plurality of approaches lO theproblem of the concept of law (1995:33). He is not convinced that lawyers' lawneed be the concept of law but is also wary of fulIy embracing nOlions of legalpluralismo Yet to widen the concept of law beyond the lhe lawyer's view of it is toassert the sociological necessity of considering the possibility thal legal thought orlegal processes in various empiricalIy analysable forms may be a relativelypervasive fealute of social life rather than isolated phenomena of a narrowprofessional sphere (Cotterell 1995:33). If the dominant concept of law incontemporary sociology of law remains the state law concept the danger is that theproblems of lawyers' law may be seen as analytically distinct from those of otheractual and potential regulatory systems (Cotterell 1995: 34)48 Roberts refers to Tamanaha (1993) who allegedly had said sOo But Tamanahahad argued that "strong legal pluralism is the product of social scientists" (1992;­25), oUling Malinowski as the tme intellectual father of the notion (1993: 192,203).- 73 ­