WHAT IS PLURAL IN THE LAW? A PRAXIOLOGICAL ANSWER

Legal pluralism keeps on being a major theme in socio-legal studies. Under this very broad term, however, many different trends can be identified which share little but the very basic idea that law is more than state law. I would like to critically address this issue of the plural nature of law in three steps. First, I go back to the historical roots of legal pluralism and discuss some of its more recent conceptualizations. Secondly, I formulate a couple of criticisms vis-à-vis the ways legal pluralism was thought of and formulate possible remedies, which are of a praxiological nature. Finally, I illustrate this praxiological re-specification through the study of family issues in Egypt. This shows the necessity to demarcate between the plural sources of state law, the multiplicity of legal practices, and legal pluralism properly speaking.

I

Reactions to dogmatic conceptions of law are as old as the social sciences. According to Durkheim, law is nothing more than the most stable and precise element of social solidarity. Making a strong distinction between law and other normative phenomena, Durkheim allowed breaking from the legal perspective, but it also made law autonomous and impervious to the influence of other norms. As such, he reproduced the John Austin’s classical positivistic distinction.

Relevant for present purposes is Bronislaw Malinowski’s definition of law, which he strongly associated with the notion of social control. According to him, law should be defined “by function and not by form”. There are many societies lacking any centralized institution to enforce the law, but there is no society that is devoid of rules that “are felt and regarded as the obligations of one person and the rightful claims of another.” Accordingly, law is as plural as social life itself, and represents the rules that are “too practical to be backed up by religious sanctions, too burdensome to be left to mere goodwill, too personally vital to individuals to be enforced by any abstract agency.”

The contribution of Eugene Ehrlich is central to the concept of legal pluralism. This Austrian sociologist developed the theory of “living law” in reaction to the ideology of an exclusively state-centered law. Considering that law is mostly independent from the state, Ehrlich states that “it is not an essential element of the concept of law that it be created by the state, nor that it constitute the basis for the decisions of the courts or other tribunals, nor that it be the basis of a legal compulsion consequent upon such a decision.” Like Malinowski, Ehrlich considers that law is fundamentally a question of social order, which is to be found everywhere, “ordering and upholding every human association.”

American legal realism was also concerned with the idea of plurality in the development of legal systems, although it does not use the word “pluralism”. Focusing on conflict resolution more than on legislations, realists contended that legal rules are formal justifications under which non-legal rules governing adjudication are disguised. Legal pluralism is also much indebted to the Dutch Adat-Law School. As early as 1901, Van Vollenhoven stated that the associative sub-groups that societies are composed of produce their own law. He was followed by a whole set of Dutch researchers, who succeeded in collecting and describing many normative practices in the field of inheritance, marriage, and land ownership. After independence, these researchers were followed by indigenous scholars who furthered the study of local customs, although often idealizing their properties.

These many theories, which shared in common a conception of the non-centralized pluralistic nature of law, constituted a patchwork of very different trends that were independent from one another. On the contrary, the 1970s and the 1980s witnessed the blossoming of a more fully integrated attempt to deal with law from a social perspective that denied the state its monopoly on, and even its mastery of, the production of law. The expression “new legal pluralism”, borrowed from Sally Engle Merry, aims at describing the emergence of the notion of legal pluralism in scholarship by studying societies without a colonial past.

In his seminal article “What Is Legal Pluralism,” John Griffiths claimed that legal centralism is an ideology. According to him, law does not exist where the proponents of legal centralism asserted that it would. Legal centralism is “a myth, an illusion,” whereas legal pluralism is the fact. Griffiths draws a distinction between strong and weak definitions of legal pluralism. The former refers to legal systems in which the sovereign recognizes different bodies of law for different groups in the population. According to him, this is mainly a weak conception of legal centralism, for it gives the central state the ultimate power to acknowledge or deny the existence of such different bodies of law. The strong definition of legal pluralism, on the other hand, is the one that is directly concerned with “an empirical state of affairs in society.” Law, Griffiths said, is the self-regulation of every social field. It becomes therefore synonymous with social control.

Gunther Teubner criticized the “classical approach” to legal pluralism for two reasons: first, legal pluralists make no proper distinction between law and other kinds of normativities; second, they attribute to law a single function, whereas various functions are identifiable. Accordingly, he defined legal pluralism “no longer as a set of conflicting social norms in a given social field but as a multiplicity of diverse communicative processes that observe social action under the binary code of legal/illegal.” This binary code of legal/illegal is constituted as the discriminating factor, which makes his theory redundant, law being what is legal.

The radical theory of legal pluralism received tremendous support. Nowadays, legal anthropology, the sociology of law and even legal theory must pay tribute to it. However, what I have shown is that, as ironically formulated by Brian Tamanaha, “the assertion that law exists in plurality leaves us with a plurality of legal pluralisms.” Accordingly, the critiques that may be addressed are many, and potentially different from one version to another. I concentrate on what seems to me being the three main fundamental flaws undermining existing legal pluralistic theories: their definitional problem, their functionalist nature, and their essentialist culturalism.

II

Brian Tamanaha exposed some of the many weaknesses in the reasoning of the proponents of legal pluralism, among which is the “conclusion that all forms of social control are law.” Merry commented that “calling all forms of ordering that are not state law by the name law confounds the analysis.” The problem can be attributed to the confusion between descriptive and non-descriptive concepts. Law belongs to the latter, notwithstanding the valuable attempts made by Herbert Hart or Joseph Raz at specifying the conditions necessary for a legal system to be constituted. When they establish law as synonymous with social norms, legal pluralists create an ambiguity, since they use a word that has a commonsense meaning to perform an analytical task that runs contrary to this meaning. To phrase it as a question: What is the analytical utility of using the word “law” to describe what common sense would never associate with law, especially if this alleged concept either does not convey anything that makes it distinct from other less connoted words or surreptitiously conveys the distinctive character of what it is supposed to be contrary to? Tamanaha goes further and states that “lived norms are qualitatively different from norms recognized and applied by legal institutions because the latter involves ‘positivizing’ the norms, that is, combining primary content rules and secondary recognition rules.

In other words, law is not an analytical concept but only a historically situated concept whose “historical ontology,” to borrow from Ian Hacking, can be described. This does not preclude the study of normativity in general and legal normativity in particular, but it seriously challenges the possibility of conducting it under the auspices of the non-descriptive ideology of legal pluralism. It is non-descriptive in the sense that it has used the legal vocabulary to describe general normativity and has used general normativity to completely dilute the meaning of law. It is also ideological as it elevates pluralism to the status of an essential, unquestionable value.

This definitional problem of legal pluralism is related to the fundamental assumption that law is the concept that expresses the social function of ordering which is performed by social institutions. Basically, functionalists claim that: (1) law has a nature and a role; (2) these are determined a priori by their social function; (3) this function is to maintain order in society.

Functionalism is necessarily associated with intentionality. To quote John Searle: “Whenever the function of X is to Y, X and Y are parts of a system where the system is in part defined by purposes, goals, and values generally. This is why there are functions of policemen and professors but no function of human as such – unless we think of human as part of some larger system where their function is, e.g., to serve God.” Accordingly, functional analysis can only operate if law is considered as the product of an intentional agency. Some legal pluralists consider law as, indeed, the product of such intentional agency. This is the case with Teubner, for whom the multiple orders of legal pluralism, characterized by their common organizing “on the binary code legal/illegal,” “may serve many functions: social control, conflict regulation, reaffirmation of expectations, social regulation, coordination of behavior or the disciplining of bodies and souls.” But this is only a partial solution to the problem of functionalism, since it still assumes that legal institutions have been created so as to systematically perform one function or another. This leaves no room for their being non-functional. The question that remains is: Has law been intentionally created so as to independently perform social functions? This is historically and empirically dubious. Obviously, parts of law were crafted so as to perform functions (although they never succeeded in being totally efficient), but it is also clear that other parts of law were not conceived in such a way. To take just but an example, can we seriously think that the combination of 7 parliaments constitutive of the legislative power in Belgium was devised in a functionalist way? Certainly not in order to facilitate international agreements in commercial matters with Canada, to say the least.

Legal pluralism has also often proved essentialist and culturalist. Generally with the best intentions, some legal pluralists promoted concepts like “folk law,” “indigenous law,” “native law,” “imported law,” “transplanted law,” “state law,” “official law,” “unofficial law,” “primitive law”. Besides the huge definitional problems associated with the term “law,” it mainly assumes that there is something like a “true” law, which is the reflection of an “authentic” society whose main cultural characters are translated into rules of conduct. This kind of “nativist” interpretation offers a very naïve picture of law, which is far from being supported by empirical evidence. The so-called “indigenous” or “native” law has often never existed except in the heads of these scholars, although it is constituted as the yardstick to which the scope of legal “acculturation” is evaluated.

Clifford Geertz’s interpretive theory deserves special mention. It conceives of law as a cultural code of meanings for interpreting the world. I quote: “‘Law’ here, there, or anywhere, is part of a distinctive manner of imagining the real.” In this hermeneutic project, “words are keys to understanding the social institutions and cultural formulations that surround them and give them meaning.” Geertz gives the example of the Arabic word “haqq”, which is supposed to come from a specific moral world and to connect to a distinctive legal sensibility. This word would carry along with it all the specific meanings that are co-substantial with something called “Islamic law.” In plural situations, i.e., situations where many cultural systems are described as interacting, law would produce a “polyglot discourse.” In that sense, pluralism would only be the juxtaposition of many cultural histories.

Culturalism fundamentally conceives of law in holistic terms, that is, as one of the many reverberations of a larger explaining principle: culture. Law has no specificity, as it merely reflects the many cultures’ specificities. Yet, this cultural unity is an assumption. This is how Rosen proceeds when, starting from the small Moroccan town of Sefrou, he ends his journey with the anthropology of justice in Islam. Moreover, he considers that Middle Eastern culture, which Moroccan culture is supposed to epitomize, can itself be caught by one “key metaphor”, one “central analogy,” the image of the bazaar market-place made of negotiated agreements extending from the realm of the public forum into the domains of family, history, and cosmology.

I think this kind of approach misses the point of law and legal pluralism. Moreover, it carries a strong flavor of essentialism, according to which societies and the laws that characterize them would carry along with them, throughout history, the same basic tenets, which are only superficially scratched by historical incidents. Also, it seems that cultural interpretivists are much more interested in the “why” question than in the “how”, although attention given to the latter would have enabled them to consider that law is not necessarily and integrally part of culture, and that culture is not a set of permanent pre-existing assumptions, but something that is permanently produced, reproduced, negotiated and oriented to by members of various social settings.

III

So, what are the possible tracks one might follow in order to re-specify the question of the plural nature of law? My answer is trivial and ethnographic: we should basically look at what people do and say when practicing what they call law. I would like, firstly, to draw on Brian Tamanaha’s work to emphasize that law does not comprise a fundamental category, but is, on one hand, a situated concept, and, on the other, a term conventionally applied to a variety of phenomena. What law is cannot be determined in advance by the social scientist or theorist. Accordingly, a situation of legal pluralism would exist “whenever more than one kind of ‘law’ is recognized through the social practices of a group in a given social arena.” In this perspective, conducting research into legal pluralism is to look at situations where there is a plurality of normative orderings conventionally referred to by the people as law.

I would like also to deepen Tamanaha’s insights through the adoption of a praxiological approach to normative phenomena. Among the problems of Tamanaha’s conception of law, there is a propensity to theorizing that should be questioned. I think that, to this type of elaboration of “a theoretical framework within which a substantive conception of society is to be construed,” one should substitute an inquiry “into the comprehensibility of society, into the ways in which social life can be understood and described when seen from within by members.” This kind of praxiological approach requires using “the criteria that participants have for determining the salient features of interactional episodes,” and this does not provide an interpretation of people’s conduct. “Rather, analysis is based on, and made valid by, the participants’ own orientations, characterizations, and exhibited understandings.” The praxiological re-specification I advocate considers ‘the problem of social order’ as completely internal to the sites of actual interactions concerning law and its social effects.

While Tamanaha rightly criticizes legal pluralism for its over-inclusiveness, that is, its inclusion of phenomena that most people would not consider to be law, and its under-inclusiveness, that is, its exclusion of phenomena that many would consider to be law, he also underestimates people’s practical and context-sensitive understanding of the word “law” and its equivalents. In fact, as we can see through an exploration into the situated and practical grammar of the phenomena and their associated words, people do not loosely use the same word to refer to different phenomena; they specifically use one word to refer to some specific phenomenon, to the production and intelligibility of which they orient in the local and temporal context in which they interact. The same word might be used to refer to another phenomenon in another context or in another sequence, but this is a question that must be empirically answered through the close examination of each interactional occurrence taking place in every specific setting. It is what I call the practical grammar of the concept of law. As for the question of legal pluralism, it means it does not arise from scholars looking at the social world from above and outside, but it becomes a topic in its own right when it comes out of people’s practices that they orient, in their own words and actions, to a situation of co-existing, conflating and/or conflicting multiple laws.

IV

It is now time to illustrate the many ways in which the notion of legal pluralism is given a practical meaning and is practically oriented to by various people engaged in the performance of some legal activity. All three cases presented below concern the issue of customary marriage in the Egyptian context. It must be noted that the very succinct treatment of these cases forbids considering them as the proper way to conduct a praxiological research. Instead, their contribution is to the strengthening of my contention that the theory of legal pluralism has little heuristic capacity in the explanation of the law. The pluralistic character of law must not be determined by some external criterion, but only by its belonging explicitly to the relevancies exhibited in situated practices.

In Egypt, there is a type of marriage not fulfilling the official registration requirement but still legitimate that is commonly called customary marriage (zawâg `urfî). According to the theory of legal pluralism, the mere use of this word testifies to the existence of a multitude of legal orders among which people navigate and engage in forum shopping. However, it must be stressed that this “customary marriage” is explicitly recognized by the law, even though restrictively, and regarded as legal by the people. In no way does it constitute an alternative or parallel legal order. It is used in order to preclude some of the consequences of officially registered marriages but it is also explicitly practiced in order to extend a legal status to sexual intercourse and to some of the practices associated with it that are otherwise illegitimate. In this case, the theories of legal pluralism, whether they call it weak or strong legal pluralism, far from providing us with the means to properly describe the situation, contribute to the prevailing confusion, through laying the groundwork for a pluralistic situation to which people do not orient themselves.

Also in Egypt, the Public Prosecution investigated a case that involved two men who had contracted a customary marriage. The investigation transcripts show that it was the case of a computer store-owner who had induced a young man working in his store to have homosexual intercourse under threat of divulgating marriage-like documents that had been signed by the latter. The young man eventually complained at the police station and the police, and later the Prosecutor, investigated the facts, which were subsequently characterized as indecent assault under duress. The press, the parties, the Public Prosecutor, all involved refer to the “contract of declaration and mutual engagement.” It is implicitly or explicitly argued that the two men had contracted a kind of “customary marriage.” According to the theories of legal pluralism, this would testify to the existence of a plurality of social fields, among which homosexual people, the police, the state, the press, etc. Each of these social fields is deemed to be endowed with and generating its own normative values and rules, that is, producing its own law and having a law mirroring its social norms. However, this is particularly confusing, since it is obvious from the case that there is no legal pluralism here but only legal practices, i.e., practices oriented toward an object of reference identified by the people as law, be it for interpreting it, implementing it, bypassing it, emptying it of its substance, contesting it, or whatever else. In other words, it is not only the state legal system that “digests” the social situation so as to give to the facts that are brought to its attention a characterization that makes them legally relevant and open to the ascription of legal consequences, but it is also the many so-called “social fields” that take state law as their focal point.

The third case concerns two young men who were found dead in the countryside near the town of Aswân, in Upper Egypt, in April 2000. Their bodies showed that they had been executed. In accordance with the law and their own professional procedures, the police opened a file and transferred the case to the Public Prosecution, which had to conduct the investigation. However, for lack of evidence on which to build the case, the case was soon considered closed. Parallel to the official story of the case, the press reported that the boys had in fact had a sexual relationship and had entered into a kind of customary marriage. Because their families found the situation unacceptable, they asked that a customary assembly (majlis al-`arab, majlis `urfî), be convened, which was required to adjudicate the case. It is said that the assembly convened and issued a ruling condemning the two boys to death. Short as it is, this terrible story explicitly reflects the existence of parallel systems of justice that function autonomously, independent of each other, despite the possibility that their respective paths may cross at a certain point. There is, on the one hand, the state justice system, represented by the police and the Public Prosecution, whose functioning necessitates the opening of a file and a procedure as soon as some criminal act comes to their attention. Technically speaking, this system cannot enter into any negotiation with an alternative justice system without jeopardizing its claim to the monopoly of legitimate authority. Practically, it is often confronted by certain types of crimes that are known by its professionals to fall outside the scope of its jurisdiction. Both policemen and prosecutors are very much aware of the existence of so-called Arab councils and local traditions, which issue rulings and cover what appears to state law as criminal liability beyond a collectively enforced solidarity, and this results often in the unavailability of witnesses testifying to, or evidence substantiating, the crime and its individual author. On the other hand, there is a “customary” legal system which is identified as such, and oriented to, by the people and issues its own rulings on a large number of matters. This justice system, which runs parallel to the official system, may borrow many of its features from the latter, but it clearly stands on its own feet and neither depends upon nor is centered on the existence of state law. In other words, it constitutes an example of a legal plural order. In this case, custom (`urf) does constitute law per se, but in so far as social actors attribute such a quality to it. It can therefore be called customary law and it can become the object of customary legal practices.

In sum, the three cases briefly discussed appear at first glance to constitute instances of weak or strong legal pluralism. However, if we closely examine the fine detail of these cases, and especially the ways in which people orient to the supposedly many laws and norms, we get a much better picture of what law is and is not for these people. We also get a much better understanding of its plural sources, of the non-pluralistic ways of its implementation, of the many places where laws interfere with each other, and of the very few places where they remain totally autonomous. Last but not least, norms, laws and legal practices cease to be confounded. Any set of norms is not necessarily law, and law is no more diluted into the all-encompassing and weakly heuristic category of “social control.” Many practices can be characterized as legal practices, and not as parallel social, normative or legal fields. Legal practices are those practices that develop around an object of reference identified by the people as law, and that can be state law or any other law recognized as such. To put it in a nutshell, a legal practice is everything that is done in a way in which it would not be done if the law of reference did not exist.


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