Legal pluralism is a central theme in the reconceptual- ization of the law/society relation. (..) Tribes and villages had some law developed over the generations on to which formal rational law was imposed by the European colonial powers. The imposed law, forged for industrial capitalism rather than an agrarian or pastoral way of life, embod- ied very different principles and procedures. Scholars termed these situations legal pluralism. (..) Yet, legal pluralism goes far deeper than the joining of European and traditional forms of law. (..) For example, Geertz describes the legal complexity of Java as the product of the encounters of an original group of settlers from South China and north Vietnam with India states, Chinese trading communities, Islamic missionaries, Dutch and British colonizers, Japanese occupation forces, and presently, the Indonesian state (1983: 226). (..) Legal pluralism is generally defined as a situation in which two or more legal systems coexist in the same social field (Pospisil, 1971; Griffiths 1986a; Moore, 1986a). (..) A legal system is plu- ralistic in the juristic sense when the sovereign commands differ- ent bodies of law for different groups of the population varying by ethnicity, religion, nationality, or geography, and when the parallel legal regimes are all dependent on the state legal system. (..) Even those legal systems with written codes, such as Is- lamic law, are often embedded in very different ways of thinking about the fact/law dichotomy, the nature of evidence, and the meaning of judging (Rosen, 1980-81; Geertz, 1983; Messick, 1986). (..) This review discusses primarily the social science version of legal pluralism. (..) "classic legal pluralism" is the analysis of the intersections of indigenous and European law. (..) "new legal pluralism" applied to noncolonized societies, particularly to the advanced industrial countries of Europe and the United States. (..) Legal pluralism has expanded from a concept that refers to the re- lations between colonized and colonizer to relations between domi- nant groups and subordinate groups (..) conceptualizing a more complex and interactive relationship between official and unofficial [normative] forms of ordering. (..) classis legal pluralism: analysis of the interaction between normative orders that are fundamentally different in their underlying conceptual structure, attention to the elaboration of customary law as historically derived, delineation of the dialectic between normative orders. (..) Diamond (1973): [State] law and custom [customary/folk law] both involve the regulation of behavior but their characters are entirely distinct; no evo- lutionary balance has been struck between developing law and custom, whether traditional or emergent. (..) Snyder (1981): The concept of 'customary law' itself manifested an attempt to reinterpret African legal forms in terms of European legal categories, which formed part of the ideology of those classes most closely associated with the colonial state. (..) Kidder (1979) suggests thinking of multiple layers of legal organization at various levels of externality with struggles between these levels, rather than just law and custom. (..) A lot of different terms are suggested for the non-State-law: customary law, external law, indigenous ordering/law, folk law, private government/justice, semiautomonous social field (Moore). (..) I think it is essential to see state law as fundamen- tally different in that it exercises the coercive power of the state and monopolizes the symbolic power associated with state authority. But, in many ways, it ideologically shapes other normative or- ders as well as provides an inescapable framework for their practice. (..) Early research in classic legal pluralism saw normative orders as parallel but autonomous. During the 1960s and early 1970s, several studies demonstrated the power of state law to reshape the social order, suggesting the dominance of this form of law over other normative orders (..) as potent tool for modernization in Third World countries. (..) In the 1970s, a more cautious and limited view of law's potential to reshape other social orders emerged. Some studies showed limits to the capacity of law to transform social life. (examples: continuation customary law in Turkey after 1926, public letter writers producing legal documents in Nigeria after 1904). (..) Research in the 1980s has increasingly emphasized the dialectic, mutually constitutive relation between state law and other normative orders. (..) In a final turn, some research explores the way nonstate normative orders constitute state law. (..) The contours of local disputing are inextricably connected with local political struggles between those whose au- thority claims rest on kinship or religion and those whose claims rest on knowledge of the state, education, or connections with the government. (..) Fitzpatrick's concept of "integral plurality" focuses on the interaction between normative orders, positing that state law is integrally constituted in relation to a plurality of social forms (1984). (..) Freeman (1986) states that pluralism, just as deconstruction, ultimately ends in immobilization, since if everything is complex and variable, just as if everything is a matter of interpretation, how can one say anything? (..) Another aspect of legal pluralism is the study of law as a sys- tem of meanings, a cultural code for interpreting the world. Geertz, a preeminent spokesman for this perspective, has devel- oped an interpretive view of legal pluralism, one richly evocative of cultural diversity (1983). (..) 'law' as part of a distinctive manner of imagining the real. (..) Santos (1987: 297) asserts that legal pluralism is the key concept in a postmodern view of law. Santos delineates two ideal-typical sign systems by means of which law symbolizes reality. The first he labels the Homeric style, in which (to shorten his description) everyday reality is de- scribed in abstract and formal terms through conventional cogni- tive and referential signs. A second, the biblical style, presupposes an image-based legality in which (again condensed) interactions are inscribed in multilayered contexts and described in figurative and informal terms through iconic, emotive, and expressive signs (1987: 295). These styles are perpetually in tension, with variations in dominance during particular historical periods. He suggests that the modern state legal order is predominantly Homeric. (..) Bentley (1984) Philipines: custom (adat), Islamic law, and Philippine civil and criminal law. (..) Foucault's conceptions of the forms of power and discipline of modern society provide yet another take on legal pluralism (1979), a perspective that is being developed by Fitzpatrick (1983b). Foucault: capitalist's "disciplinary technologies" (timetabel, cell, panopticon, factory, school - and law, shaping supervising institutions) (..) Pospisil describes the dismay of the Kapauku Papuans at the use of jail as a punishment, one that to them seems extraordinarily severe since it separates the individual from the essential cooperation of soul and body, the linkage be- tween one's actions and one's own free decisions (1979: 141). In their words, in jail, "The man's vital substance deteriorates and the man dies" (Ibid.: 142). (..) legal pluralism moves away from the ideology of legal centralism; (..) shifts away from an essen- tialist definition of law to an historical understanding since any sit- uation of legal pluralism develops over time through the dialectic between legal systems; (..) viewing situations as legally plural leads to an examina- tion of the cultural or ideological nature of law and systems of nor- mative ordering; (..) move away from an exclusive focus on situations of dispute to an analysis of ordering in nondispute situations; (..) framework for understanding the dynamics of the imposition of law and of resistance to law, for examining the inter- active relationship between dominant and subordinate groups or classes. (..) limitations: A legal pluralist analysis tends to emphasize changes that occur through interactions between social fields but not those taking place within a social field. (..) risk to the neglect of the variation in particular local places. |