who's afraid of legal pluralism?

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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
JOURNAL OF LEGAL PLURALISMWHO'S AFRAlD OF LEGAL PLURALlSM? 2002 - nr. 47Franz von Benda-Beckmannacademics certainly do not really use it,49 Even among legal sociologists interested inlaw or lawyers ilS use is rather the exception than the rule. The creation of twocamps, one of so-called plural ists and one of state law adherems therefore doesnOI make much sense and only detracts allention from lhe really imereslingmethodologic"al queslions.9. A final cornmentIn the discussion of the concept of legal pluralism, much time has been devoted toconceptual, sometimes rather scholaslic argumentation. Such discussions areimportanl for creating analytical clarification, and for laying bare the manyideological and theoretical assumptions that are often implicit and hidden incertain conceptual usages. But lhe discussions easily become sterile unless lheyare rooted in the analysis of empírical situalions and historical processes, andunless lhey are made part of a more comprehensive social scientific understandingof the social world of which law and legal pluralism, however defined, are onlyone aspect and part. I reiterate here that such conceptual and analyticalc!arifications are useful, bUI lhey do not amoullt to 'lheory'. Given the widevariety of what is called law or legal pluralism, it would be pretty awkward totreat them as 'one factor' in theoretical understandings or explanations of actualsocial siluations and (microor macro-) historical processes. DifferentconsteHations of legal pluralism - at whatever time and spalial scale - have tobe explained by lheory (see also Greenhouse 1998: 3). Much more attentiontherefore should be given lO empirical research and to the theoreticalunderstandings of the many varialions we find in the empirical constellations oflegal pluralism and of the ways in which these different constellations influencethe actual social, political and economic conditions in the areas and the lives ofthe people concerned.ReferencesBACHOFEN, Johann Jakob1948 Das Mutterrecht (2 Vols.) Slungart. [1st edition 1861J49 See also Woodman (1998:40) "Lawyers have preferred to ignore lhe subject sinceit challenges lheir accepted ideologies".- 74 BENDA-BECKMANN, Franz von1970 Rechtspluralismus in Malawi Geschichtliche Entwicklung und heutigeProblematik eines ehemals Britischen Kolonialgebiets. München:Weltforum Verlag.1979 Property in social colltinuity: Continuity and change in the maintenanceof property relationships through time in Minangkabau. Wesl Sumatra.The Hague: M. Nijhoff.1983 'Why law does not behave: Critical and constructive reflections on thesocial scientificperception of the social significance of law.' pp. 232-262in H. Finkler (comp.), Proceedings oflhe Symposium on Folk Law andLegal Pluralismo Xlth IUAES Congress. 1983. Vancouver.1984 'Law out of context: A comment on the creation of customary lawdiscussion.' Journal o[African Law 28: 28·33.1986 'Anthropology and comparative Law.' pp. 90-109 in Keebet von BendaBeckmann and Fons Strijbosch (eds.) Amhropology ofLaw in Ihe Netherlands.Dordrecht: Foris.I988a 'Cornment on Merry.' Law and Society Review 22: 897-90 l.1988b 'lslamic law and social security in an Ambonese village.' pp. 339-365in Franz von Benda-Beckmann, Keebet von Benda-Beckmann, EricCasino, Fran.k Hinz, Gordon Woodman and Hans Zacher (eds.),Between Kinship and the State: Social Security and Law in DevelopingCounrries. Foris: Dordrechl.1989 'Scapegoat and magic charm: Law in development theory and practice.'Joumal o[ Legal Pluralism 28: 129-148.1991 'Pak Dusa's law: Thoughts 'on legal knowledge and power.' pp. 215227 in E. Berg, J. Lauth und A. Wimmer (eds.) Ethnologie im Widerstrei!:Konlroversen über Machi, Geschtift, Geschlecht in fremden1992a1992bKulluren. Festschriftfür Lorenz G. LOffler. Trickster Verlag..'Introduction: Understanding agrarian law in society.' pp. 1-22 in Franzvon Benda-Beckmann and Menno van der Velde (OOs). Law as aResource in Agrarian Struggles. Wageningen: Pudoc.'Symbiosis of indigenous and westem law in Africa and Asia: An essayin legal pluralism.' pp. 307-325 in W.J. Mommsen and J.A. de Moor(eds.), European Expansion and Law: The Ellcounter o[ European andIndigenous laws in 19th and 20th Century Africa and Asia. Oxford/NewYork: Berg Publishers.I992c 'Changing legal pluralisms in Indonesia.' Yuridika8/4: 1-23.1994 'Rechtspluralismus: Analytische Begriffsbildung oder politischideologisches Programm?' ZeitschriftjUr Ethnologie 119: 1-16.1997 'Citizens, strangers and indigenous peoples: Conceptual politics andlegal pluralism.' pp. 1-42 in Franz von Benda-Beckmann, Keebet von- 75
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