vs function-based, essentialist concepts of law (..) legal pluralism has been called 'the key concept in a post-modem view of law' (..) there is no agreement on the underlying concept of law, a pluralityo f legal pluralisms. (..) The core credo of legal pluralists is that there are all sorts of normative orders not attached to the state which nevertheless are 'law.' (..) As Sally Merry put it, 'Where do we stop speaking of law and find ourselves simply describing social life?' (..) Despite its flaws, legal pluralists have succeeded in one instrumental respect: combating what they call the ideology of legal centralism. Legal centralism, according to legal pluralists, is the false ideology that 'law is and should be the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state institutions'. (..) I will reconstruct the concept of legal pluralism based upon a non-essentialist version of law. (..) Law is either seen in terms of concrete patterns of behaviour within social groups (Eugen Ehrlich, Bronislaw Malinowski), or in terms of institutionalized norm enforcement (Adamson Hoebel, Max Weber, H.L.A. Hart). (..) Santos defines law as 'a body of regularized procedures and normative standards, considered justicable in any given group, which contributes to the creation and prevention of disputes, and to their settlement through an argumentative discourse, coupled with the threat of force.' (..) By comprehensive relabelling, Santos has in effect juridified the social world. (..) Legal pluralists have a tendency to romanticize nonstate normative systems. (..) Social arenas are characterized by rulesystem pluralism. (..) Gunther Teubner (linguistic turn) - autopoietic theory: law consists of all discourse that invokes the binary communicative code of legal/illegal. (..) Legal pluralism is then defined no longer as a set of conflicting social norms in a given socialfield but as a multiplicity of diverse communicative processes that observe social action under the binary code of legal/illegal. (..) Autopoiesis, initially developed by Niklas Luhmann, is fundamentally functionalist in nature. Law is an autonomous, differentiated sub-system within society, according to Luhmann. (..) Every attempt to define law in functional terms has suffered from being either too broad or too narrow. Law is a thoroughly cultural construct. What law is and what law does cannot be captured in any single concept, or by any single definition. (..) law has no essence (..) Law is whatever people identify and treat through their social practices as 'law' (or recht, or droit, and so on). (..) This is a conventionalist way of identifying law. Commonly, this involves state law or customary law and indigenous law, or international or religious or natural law. (..) A state of 'legal pluralism,' then, exists whenever more than one kind of 'law' is recognized through the social practices of a group in a given social arena, which is a relatively common situation. (..) This approach is based upon the recent interpretive turn in social theory and the social sciences, which insists that greater attention and respect be paid to the meaningful orientations and categories of ordinary social actors. (..) Social analysts can identify normative pluralism, rule-system pluralism, and legal pluralism in terms of separate criteria, talk about them together, and observe where they overlap or intersect and how they interact. (..) Social investigators can ask who (which group in society, which social practices) identifies what as 'customary law,' why, and under what circumstances? (..) The non-essentialist version of legal pluralism easily recognizes forms of law that may have little or no connection to the state. (..) The real threatening adjustment conventionalism brings about is its frontal challenge to the authority of social and legal theorists - the champions of essentialism - to dictate for everyone else what law (properly understood) is. |