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Citation: 20 J.L. & Soc'y 192 1993

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JOURNAL OF LAW AND SOCIETYVOLUME 20, NUMBER 2, SUMMER 19930263-323X

The Folly of the 'Social Scientific' Concept of Legal Pluralism

BRIAN Z. TAMANAHA*

Despite its relatively recent origin about two decades ago, the concept of legalpluralism bears the marks of approaching ensconced establishment maturity.There is the Commission on Folk Law and Legal Pluralism, with a registeredmembership list that reads like the honour roll of living legal anthropologists;there are biennial international conferences; there is a growing number ofpublished symposia; and, the ultimate sign of academic acceptance, there isthe Journal of Legal Pluralism, born out of a 1981 name-change of the oldJournal of African Law Studies. Consistent with these indicia, legal pluralism isone of the dominant concepts in the field of legal anthropology. Moreover, ithas been claimed, 'legal pluralism can be seen as the key concept in apostmodern view of law'.'

In this essay I will critically examine this precociously successful doctrine.Thus far there has been scant detailed analysis of the concept of legalpluralism, limited to a handful of articles written by a small circle of scholars.Nonetheless, through the academic practice of repetitive citation and cross-citation, a burgeoning body of legal pluralist works increasingly treats theconcept as if it were well established, its basic tenets worked out and now takenfor granted.2 I will argue otherwise.

The thesis of this essay is that the concept of legal pluralism is constructedupon an unstable analytical foundation which will ultimately lead to itsdemise. I will begin with a review of the concept of legal pluralism,emphasizing the implications of the inability of legal pluralists to locate anagreed definition of 'law'. I will set out and evaluate the stated objectives oflegal pluralists. I will indicate why no attempt to formulate a single scientific orcross-cultural definition of law can succeed. I will suggest an account of thehistorical development of legal pluralism in order to offer an explanation ofhow the concept originated and why it has thrived despite its flaws. Finally, Iwill argue that legal pluralists have built a fundamental ambiguity into their

* Universitair Docent, University of Amsterdam, Cronenburg 13, 1081 GL

Amsterdam, Netherlands

I would like to thank the following for their critical comments on earlier drafts of this article: JohnGriffiths, Gordon Woodman, Franz and Keebet von Benda-Beckmann, Andrew Ladley, SallyEngle Merry, and Elizabeth van Schilfgaarde.

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notion of 'law', and that in important respects the concept of legal pluralismcuts against legal pluralists' own expressed interests and concerns.

The concept must be entirely reconstructed, or retired.

THE THRESHOLD FLAW OF LEGAL PLURALISM

In a comprehensive review, Sally Engle Merry began by observing that legalpluralism 'is generally defined as a situation in which two or more legalsystems coexist in the same social field'. 3 This unobjectionable definition wasonly the starting-point. The first sign of an analytical problem appeared justthree sentences later, when Merry elaborated further: 'Recent work defines"legal system" broadly to include the system of courts and judges supportedby the state as well as non-legal forms of normative ordering.'4

The apparent contradiction (legal includes non-legal) in Merry'sformulation was not due to intellectual sloppiness - she was forced into it bythe fundamental assumption of legal pluralism. This assumption, asprominent legal anthropologist Sally Falk Moore put it, is that 'not all thephenomena related to law and not all that are law-like have their source ingovernment'.'

Legal pluralists insist that the state does not have a monopoly on law.6 Thisis the core credo of legal pluralism: there are all sorts of normative orders notattached to the state which nevertheless are law. These non-state 'legal' ordersrange from pockets within state legal systems where indigenous norms andinstitutions continue to exert social control, to the rule-making and enforcingpower of social institutions like corporations or universities,7 to the normativeorder which exists within small social groups, from community associations tolittle-league baseball,' down to and including even the family.9

As should be immediately apparent, so generous a view of what law isslippery slides to the conclusion that all forms of social control are law. Notonly does the term 'law' thereby lose any distinctive meaning - law in effectbecomes synonymous with normative order - other forms of normative order,like moral or political norms, or customs, habits, rules of etiquette, and eventable manners are swallowed up to become law. The seriousness of thisproblem is evidenced by Merry's plaintive plea:

Why is it so difficult to find a word for non-state law? It is clearly difficult to define andcircumscribe these forms of ordering. Where do we stop speaking of law and find ourselvessimply describing social life? Is it useful to call all of these forms of ordering law? In writingabout legal pluralism, I find that once legal centralism has been vanquished, calling allforms of ordering that are not state law by the name law confounds the analysis."0

At the very outset, then, legal pluralists stumble over their insistence that thelegal includes the non-legal (as Merry so aptly put it). The only apparentsolution to this problem is to come up with a definition of law independent ofthe state, yet able to differentiate law from other forms of normative order.None of these attempts, which I will canvass in a later section, have succeededin becoming a consensus favourite. Thus, legal pluralists are left with theassertion that the legal includes the non-legal, while unable to provide a

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certain standard by which we are to identify the distinctively legal (now in thebroader legal pluralist sense) from the truly non-legal (those normative orderseven legal pluralists would not want to call law).

Adherents of legal pluralism readily concede this problem but marchonward undaunted, relying upon the intuitively attractive notion that evenwith no test to distinguish law from non-law, we know it when we see it.Gordon Woodman described this rather blithe attitude: legal pluralists 'havegenerally been content to describe and analyse norms and activities whichseem to have a clearly legal character, without formulating a precise criterionfor borderline cases'." Although this is an accurate statement of their attitude,his description is misleading in so far as it implies that the problem exists onlyat the margins. Because it determines inclusion and exclusion at the outset, adefinition of law must be presupposed before there can even be a question ofborderline cases.

Almost nothing of what I have stated thus far would come as a revelation tolegal pluralists, for whom my recitation would be little more than an irritatingreminder of a flaw they have learned to live with. Their faith is that the conceptof legal pluralism works despite this flaw.

OBJECTIVES OF LEGAL PLURALISM: LEGAL CENTRALISM,ETHNOCENTRISM, AND SCIENCE

The literature presents three basic objectives served by the concept of legalpluralism. These objectives are contained in the seminal article 'What is LegalPluralism?"2 written by John Griffiths, editor of the Journal of Legal Pluralismand one of the leaders in the field. Griffiths's article is the only extantcomprehensive treatment of the concept of legal pluralism, and it is routinelycited by legal pluralists for the basic postulates of legal pluralism. Thus, it willbe an important (though far from exclusive) source of my assertions aboutlegal pluralism, and it will be a primary target of my critique.'3

The first objective is an instrumental one - to combat what Griffiths dubbedthe ideology of legal centralism:

According to what I shall call the ideology of legal centralism, law is and should be the lawof the state, uniform for all persons, exclusive of all other law, and administered by a singleset of state institutions. To the extent that other, lesser normative orderings, such as thechurch, the family, the voluntary association, and the economic organization exist, theyought to be and in fact are hierarchically subordinate to the law and institutions of thestate.

In the legal centralist conception, law is an exclusive, systematic, and unified hierarchialordering of normative propositions, which can be looked at either from the topdownwards as depending from a sovereign command or from the bottom upwards asderiving their validity from ever more general layers of norms until one reaches someultimate norm.... It is the factual power of the state which is the keystone of an otherwisenormative system, which affords the empirical condition for the actual existence of 'law'.Hence the necessary connection between the conception of law as a single, unified, andexclusive hierarchial normative ordering and the conception of the state as thefundamental unit of political organization."

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Griffiths believes that lawyers, legal theorists, and social scientists view lawin terms of this distorting ideology, to the detriment of their ability foraccurate observation and analysis:

A central objective of a descriptive conception of legal pluralism is therefore destructive: tobreak the stranglehold of the idea that what law is, is a single, unified, and exclusivehierarchial normative ordering depending from the power of the state, and of the illusionthat the legal world actually looks the way such conception requires it to look."

This objective is an article of faith for many legal pluralists, repeated sooften it has become a truism. Marc Galanter charged that' "Legal centralism"has impaired our consciousness of "indigenous law".".6 Franz von Benda-Beckmann claimed that 'Legalistic ideology has not yet been fully bannedfrom the research methodology of sociolegal studies."7 Boaventura De SousaSantos asserted that legal pluralist studies have served the important purposeof revealing that 'the claim of the state to the monopoly of the production anddistribution of law is absurd'. 8 Peter Sack recently stated:

Lawyers and non-lawyers must accept the plurality of 'law' and learn to handle itconstructively - in theory as well as practice - instead of trying to define it away to thedetriment of all of us. This implies, of course, a switch from legal positivism and its bias infavour of an increasing centralization, unification, and uniformization of 'law' to legalpluralism. 9

Legal pluralist works are filled with uncompromising assertions of this sort -that legal centralism is bad, a pervasive false ideology, and the concept of legalpluralism will rescue us from its deluding effects.

One problem with evaluating these contentions is that legal pluralistsengage in almost no discussion about the nature of this supposed ideology,and they offer no support to show that it exists and has the effects they claim.Apparently, legal pluralists either believe it to be self-evident or they believeGriffiths's brief treatment, set out above, to be enough. As I will show, thenotion of the ideology of legal centralism is, to put it bluntly, dubious.

First I must separate the first paragraph from the second in Griffiths's quoteabove on page 194 and, within the first paragraph, the first sentence from thesecond. The first sentence of the first paragraph - 'the law is and should be thelaw of the state.., exclusive of all other law'- is part of a standard widely-useddefinition of law, one developed out of the Austinian positivist legal traditionwhich identified the law as a product of the sovereign. Usually this definition issupplemented by additional criteria that indicate which commands of thesovereign are law as opposed to something else.2" As a definition, it is not afalsifiable ideology subject to disproof but rather a shared convention, thoughof course we can discard this convention for another we find preferable.Indeed, legal pluralists are attempting to do just that - substitute their view oflaw for the currently dominant one. To call the competing definition they wishto supplant an ideology is merely rhetorical stone-throwing.

Keeping in mind its definitional element, legal pluralists are correct in so faras they mean this (and any) definition of law has ideological implications oreffects. It will shape what people see as law and how they think about law. Ifone holds to a different definition of law - the 'really true' definition of law -

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from this perspective any competing definition will have the ideologicalconsequence of perpetuating a falsehood. Thus, by branding the definition oflaw as deriving from the state to be an ideology, legal pluralists are saying theirversion of 'law' underlying legal pluralism is the objective or correct one, aclaim I will take up in detail in the discussion of science below.

The critical point here is that what is or is not ideological often dependsupon the perspective from which one speaks. Presumably legal pluralistswould concede that. lawyers and legal theorists can legitimately operate fromwithin the internal perspective to see law exclusively in terms of the state. If ajudge asks a lawyer to cite the law in a case, the lawyer is in no sense deludedwhen responding by referring solely to statutes and court decisions.Furthermore, from within this internal state law perspective, it would beentirely justifiable to argue that legal pluralism is an ideological constructfoisted upon us by legal pluralists who want to bring down state law or raise upthe prestige of their version of non-state 'law'.

The assertion contained in the second sentence of the first paragraph - thatnormative orderings such as those of church and family are subordinate tostate law - does describe a belief, but whether this belief is widely held as ablanket matter is highly debatable. Certainly it depends upon which particularnormative ordering one is talking about and which particular state system. Inthe Republic of Ireland it is unlikely that most people believe the normativeordering of the church to be beneath the law (or even look at the relationshipbetween state law and religious norms in these terms). And few people insideor outside the country believe that in Iran church canon is beneath state law.Even in the United States of America, many people (including lawyers) wouldsay that the normative ordering of the church and the normative ordering ofthe family are outside the purview of the authority of state law.2 Many peoplebelieve - consistent with the philosophy and culture of liberalism - that theseare realms of private normative ordering, prior to state law and not beneath it.Griffiths and other legal pluralists have not accounted for these commonbeliefs or how they square with their assertions about the nature of theideology of legal centralism.22

Griffiths's least credible assertions are those contained in the secondparagraph. His description of law seen as 'a unified hierarchial ordering ofnormative propositions' leading up to an 'ultimate norm' comes straight outof the long defunct formalist perspective of law. Following the devastatingrealist attack on these beliefs more than fifty years ago, few lawyers todaywould describe the law in such terms.2 3 But even assuming, for the sake ofargument, that lawyers do see law in this way, legal pluralism is barely if at allrelevant to this formalistic body of beliefs because they comprise a purelyinternal description of the state legal system which legal pluralism does nottouch. The internal battle is fought within the field ofjurisprudence, carried onby debunkers like adherents of critical legal studies, not by legal pluralists whoclaim their 'law' is also law.

Finally, again assuming his neo-formalism accurately describes the lawyers'view of law, Griffiths's assertion (also made by other legal pluralists) that social

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scientists are blinded by this ideology is especially implausible. One of the self-professed characteristics of legal sociology is the external perspective on lawwhich its practitioners assume by way of contrast to the lawyers' internalperspective. 4 This distinction is reflected in their work, which seldomaddresses law or legal institutions in terms of the ordering of legal norms.Legal sociologists often study the actual functioning of state legal institutions,the background ofjudges and its effect on their legal decisions, the nature andinfluence of the legal profession, lay attitudes toward state law, or otheraspects of the state law system. These studies have significantly contributedtowards demystifying the law because legal sociologists directly cltallenge thepresuppositions which underlie the lawyers' internal understanding. The factthat they take state law or some aspect of it to be their object of study (asopposed to legal pluralism's version of 'law') cannot in any way be called theproduct of ideological delusion. The legal pluralist charge - that 'many legalsociologists submitted to, and inevitably romanticized the dominant legalsystem ' - is unsupportable.

This perfunctory testing of the supposed ideology of legal centralism revealsmuch fluff surrounding one core point. Remember that Griffiths and other legalpluralists claim that legal pluralism must defeat legal centralism because it is adominant set of false beliefs which distort how we see law. If in fact thesebeliefs are not false (at least with regard to lawyers), are not widely held, or donot have the deluding influence claimed (at least with regard to socialscientists), then one of the 'central objectives of the descriptive conception oflegal pluralism' is to combat a non-existent enemy. It would appear that legalpluralists have created a fearsome, hegemonic opponent- legal centralism - inorder to inflate the significance of their conception of legal pluralism.

Blowing away the fluff, however, still leaves a core point - the dominant(definitional) conception of the law sees the law as a product of the state. Froman anthropological point of view, this linkage of law to the state isproblematic. It implies that those societies without a state have no law. Sincelaw has for the past several centuries been seen by the West as the singularcharacteristic of a civilized society, the ethnocentric implication of this linkageis that pre-state societies were uncivilized. The second objective of legalpluralism - referred to implicitly by Griffiths, but a more prominent concern ofearlier generations of legal anthropologists - is to combat this ethno-centricity.1

6

While opposition to ethnocentrism is laudable, that in itself does not supplya persuasive reason for adopting legal pluralism. Today state law isubiquitous. Thus use of the state law definition would not condemn anyexisting society as uncivilized. Moreover, a more effective strategy would be toidentify state law for what it is - a contingent development which occuredinitially in the West- and to suggest more appropriate cross-cultural measuresof the civilization of a society, such as how generously it treats its least well offmembers. In any case, the attempt to measure civilization is now widelycondemned as an inevitably enthnocentric, useless exercise, and has beenlargely abandoned.

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Adoption of the concept of legal pluralism is therefore neither necessary northe most effective way to counter ethnocentrism. If legal pluralism is to seizethe day, it must do so on its own merits. That is what the. argument fromscience - the third objective - attempts to accomplish.

Griffiths's attack on legal centralism led directly to the claim of the scientificsuperiority of legal pluralism:

This ideology [of legal centralism] is shown to reflect the moral and political claims of themodern nation state and to be unsuitable and obfuscatory as far as the social scientificstudy of legal pluralism is concerned."

That is the basic import of his contrast: 'Legal pluralism is the fact. Legalcentralism is a myth, an ideal, a claim, an illusion.'28

His insistence that legal pluralism is fact went very far:

'Legal pluralism' is the name of a social state of affairs and it is a characteristic which canbe predicated of a social group. Itisnotthe name of a doctrine ora theory oran ideology...."

This is an extraordinary series of assertions. It appears that Griffiths isarguing that legal pluralism is an unmediated look at social reality - that iteven gets underneath concepts to reach things ('the facts') as they really are.

After Thomas Kuhn's showing that even the natural sciences are basedupon series of shared paradigms which in effect construct the facts scientistssee,30 and further, in this time of increasing sensitivity to the insights ofinterpretivism,3" including recognition that social reality is sociallyconstructed through our ideas and beliefs, that Griffiths would make suchassertions without addressing their implications is surprising. One need not bea sceptic to accept that law is a social construct and therefore there is nounmediated access to law. Law is a conceptual creation. Also for scientists, aconcept of what law is must precede any observation of law as fact.32

Griffiths and other legal pluralists are well aware of this, so they must bemaking a different argument. They sometimes seem to be arguing that if onewishes to be scientific, at least in terms of an 'empirical' or 'analytical' socialscience, the legal pluralist vision of law is the only way to go. Franz von Benda-Beckmann put it thus:

Legal pluralism, analytically conceived, is the nearly automatic consequence of ananalytical concept of law which distances itself from the dominant legal ideology, orrather, from all legal ideologies that may exist in a society.3

Masaji Chiba proclaimed that 'a sociology of law will be sure to be developedinto a truly international sociology of law through this study of legalpluralism.'34 When read together with their assertions about the blindness ofsocial scientists induced by legal centralism, legal pluralists appear to bemaking the strong claim that all social scientists must or should view law in thelegal pluralist way.35 If this is their contention, it is patently untenable.

The problem with such a contention is that the social sciences arecharacterized by a pluralism of perspectives, all of which would claim to be'empirical' or 'analytical', many of which are mutually exclusive or contra-dictory.36 Compare the sharp differences between, for example, Luhmann's

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autopoietic version of law, Mead's symbolic interactionist version, andMarx's law as superstructure version. The social sciences generally, at least onthe level of theory, are currently undergoing the uncertainty (and imposedhumility) which accompanies deep critical self-examination, to the point ofquestioning even their own nature and validity. Considering this state ofaffairs, legal pluralist claims to authority from the perspective of anoverarching version of 'analytical' or 'empirical' social science are difficult tofathom.37 There can be no single social science view of law because there aremany different scientific perspectives and many different objectives ofenquiry.38

Despite the sweeping impression their words convey, perhaps legalpluralists are making a less grand claim. Their argument may go as follows:(i) there is a particular phenomenon - a form of normative order or socialcontrol - which can be identified cross-culturally and across all sorts ofgroups; (ii) this phenomenon is 'law'; (iii) there is a plurality of social groupseverywhere, each with their own attendant normative (now 'legal') demands;(iv) thus legal pluralism is a fact.

If this is the argument legal pluralists are urging, their science talk addsnothing beyond the boost of legitimacy which accompanies resort to thestamp of science. Science does not place weight on either side of the criticalissue at stake because science does not have ultimate authority over what is oris not 'law'.

Granted that normative ordering or social control are universalcharacteristics of social groups, the question remains, why must we take theadditional step ((ii) above) and attach to this phenomenon the label 'law'?Why 'legal' pluralism rather than 'normative' pluralism or 'rule system'pluralism? Legal pluralists, perhaps despite themselves, regularly lapse intoreference to legal pluralism as a state of plurality of normative ordering;39

when they get down to identifying precisely what their 'law' is it usuallyamounts to some variant of social control. Yet normative ordering is, well,normative ordering; social control is social control. Both terms have beenwidely used as sociological concepts, and neither is usually seen as coextensivewith law. Nevertheless, at least a few legal pluralists insist that 'all socialcontrol is more or less 'legal'.'"

This position tramples everyday usage of these very familiar terms. Law, byour common understanding, is something distinct from the notions ofnormative order or social control. What that something is depends upon howwe define law.

WHAT IS 'LAW'?

Legal anthropologists, legal sociologists, and jurisprudence scholars havelong struggled to come up with a scientific or cross-cultural definition of law.All such attempts to define law either focus on norms, or on institutions whichenforce the norms, or use some combination of both.

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In his classic work Crime and Custom in Savage Society, Malinowskifocused on norms: 'The rules of law stand out from the rest in that they are feltand regarded as the obligations of one person and the rightful claims ofanother.'4' Malinowksi added 'that reciprocity, systematic incidence,publicity, and ambition will be found to be the main factors in the bindingmachinery of primitive law'.42 The problem with Malinowski's definition is thesame one which plagues legal pluralists today: his conception 'was so broadthat it was virtually indistinguishable from a study of the obligatory aspect ofall social relationships'. 3

To solve this problem theorists examined more carefully the element ofsocial sanction. While many social norms are felt to be obligatory, not allinfractions result in sanction. Eliminating those which are not backed up bysanction offers an easy way to narrow the list of eligible norms. This move,however, leads to another difficult problem. There are varying degrees ofsanction and they assume different manifestations, some of which we do notwant to call law. For example, social disapprobation is probably the mostprevalent sanction imposed upon infraction of norms, but that does not seemto be enough. The sanction law carries is somehow more serious. Likewise,self-help or retaliation can be and often is a serious sanction, though we resistcalling such action law. For us law has the character of involving a public, notprivate, sanction.

Adamson Hoebel's formulation captured both of these intuitions:

[a] social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by theapplication of physical force by an individual or group possessing the socially recognizedprivilege of so acting."

Hoebel's definition moved in the direction of focusing on the institutionalizedenforcement of norms. However, his formulation is at once too loose and toorestrictive to be satisfactory: too loose because it is still broad enough toinclude certain types of retaliatory actions we would call politics or violence,not law; too restrictive because the penalty is narrowly conceived - many ofour laws carry no threat of physical force.

Max Weber went a step further in the direction of institutionalization:

The term 'guaranteed law' shall be understood to mean that there exists a 'coerciveapparatus,' i.e., that there are one or more persons whose special task is to hold themselvesready to apply specially provided means of coercion (legal coercion) for the purpose ofnorm enforcement."

Again, the definition goes too far for cross-cultural purposes. Not all pre-statesocieties had a specialized staff for norm enforcement. 6

One of the most influential tests has been formulated by positivistjurisprudence scholar H. L. A. Hart. According to Hart, law exists where thereis a combination of primary rules of obligation, and secondary rules toidentify, apply, and change the primary rules.47 A number of anthropologistshave adopted a version of Hart's test.48 From a cross-cultural standpoint,however, this test is problematic because, as Hart admitted,49 it excludesnormatively ordered pre-state communities which lacked secondary rules.

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There are other tests. None have gained universal acceptance. A group ofprominent legal pluralist scholars announced their conclusion that non-state'law' cannot be identified as a type; the most that can be identified is 'thedifferentiation and organization of the generation and application of norms'."Again the question must be asked, in view of this admitted inablility, how canadherents so insistently (and aggressively) use the label legal pluralism?

My reason for setting out this list is not to reiterate the series of attempts andfailures to devise a universally acceptable scientific or cross-cultural definitionof law. Legal pluralists are intimately familiar with such attempts. Rather, mypurpose is to point out an often overlooked characteristic of these proposeddefinitions.

With the notable exception of Malinowski's, every one of these attemptsdraws upon the same strategy: their proponent locates the criteria for law byextracting or emulating those elements which appear to be essential to statelaw, then subtracting all trappings of the state. Similarly, the main test weapply to determine whether the proposed definition captures what we mean bylaw is to measure it against our intuitions about the essential characteristics ofstate law, sans the state. These are rational strategies; indeed, since the statelaw model is our paradigm for what the concept 'law' means, it is the onlysensible way to approach the task.' The confusion engendered byMalinowski's approach is testament to the perils of undertaking an alternativetack.

The implication of this point for legal pluralism should be apparent. Manylegal pluralists insist that state law is irrelevant to law as a concept (freed 'fromall legal ideologies'). Cross-cultural and scientific conceptions of law disavowany connection to the state because the state is not a universal social fact but atemporally and geographically contingent occurrence. Hence Woodman'sassertion: '[Non-state] law can be conceptualized independent of state law,and in theory can exist without any relationship to state law.'52

As it turns out, however, law's conceptual connection to the state cannot besevered. State law, the reigning notion of law, originated in the separation ofstate from society, with its concomitant division of public and private spheres.In the above definitions, the search for the institutional aspect of normformulation or enforcement is nothing other than a smuggled reference to thestate bureaucratic legal apparatus. Thus, the state law model inescapablyprovides the kernel of the concept of non-state 'law'.

The root source of the unbudging barrier subverting all attempts atformulating a universal scientific or cross-cultural definition of law lies in thegoal itself. This goal is based upon the faith of the scientific or theoreticalattitude that there is something beneath the culturally generated, state-linkednotion of law - that law is a fundamental category which can be identified anddescribed, or an essentialist notion which can be internally worked on until apure (de-contextualized) version is produced.53 Unsettling as it may be, there isnothing beneath the culturally-generated notion. 4

Every scientific discipline is free to devise a definition of law suited to its ownparticular objectives, although there are many bodies of scientific discourse

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and each is entitled to do the same. Kept within the bounds of its owndiscourse, any such proffered definition of law is legitimate. Beyond thesebounds, when adherents assert that the commonly-held definition of law isfalse, or that they alone have the one correct, factual version of law, theyexceed their scope of authority.

Legal pluralists must retreat to the more modest position that their versionof law is one among many, useful for certain purposes but not others. Withthese corrections, very little is left of their many extravagant claims. Legalpluralism must be of instrumental value if we are to adopt it - it must edifymore than obscure.

WHY 'LEGAL' PLURALISM?

The crux of my argument, which I will elaborate in the next section, is that aninadvertent wrong turn was made in the theoretical development of thisconcept. Curiously, several of the problems examined in detail in this articleare not new. Yet adherents of legal pluralism have continued to press forwardwith an impressive degree of success in attracting new followers. Not only doesthis unusual situation beg an explanation, it also raises the real possibility thatany attempt to pierce the legal pluralism balloon will pass ignored. Thus, inaddition to helping my substantive argument, I hope this brief account of whythe concept of legal pluralism developed in the way it has will lead to a reflexiveexamination by legal pluralists that helps break the momentum of thedoctrine.

As with so much in this field, the standard account for the development ofthe concept of legal pluralism can be found in Griffiths's programmatic articleon legal pluralism. Griffiths distinguished two kinds of legal pluralism, whichhe polemically tagged 'weak' and 'strong'. For the paradigm example of weaklegal pluralism Griffiths pointed to M. B. Hooker's Legal Pluralism: AnIntroduction to Colonial and Neo-Colonial Laws. Weak legal pluralismdeveloped out of studies of transplanted law, where the focus was on theincorporation of customary law, or other sorts of indigenous norms andinstitutions, within the state law regime. Law is pluralistic in these situations inthe sense that within the state law system there are different kinds of legalnorms - and sometimes different kinds of institutions, such as informal orvillage courts -which apply or not depending upon the subject-matter at issueor the population sub-group involved.

Griffiths sharply distanced this 'weak' version of legal pluralism from his'strong' version. According to Griffiths, weak legal pluralism is just anotherform of legal centralism because its implicit message is that all other lawsshould be organized in a hierarchy beneath state law. He argued that weaklegal pluralism is the product of lawyers;55 it has no connection with stronglegal pluralism other than the confusing overlap of labels.

Strong legal. pluralism, Griffiths' preferred version, is the product of socialscientists. The discussion in this article has been based upon strong legal

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pluralism - the scientific observation of the fact of a plurality of legal orderswhich exists in all societies. Intellectual forerunners of strong legal pluralismidentified by Griffiths include anthropologist Leopold Pospisil, whoemphasized the multiplicity of legal systems belonging to sub-groups,organized in terms of inclusiveness into various 'legal levels' in society; M. G.Smith, who described law in terms of the internal order of 'corporate' groupsin society; Eugene Ehrlich's theory of 'living law', the lived rules of normativeorder which he contrasted to state law; and Sally Falk Moore's theory of therule-generating and enforcing power of social groups, what she labelled the"semi-autonomous social field". 56

Griffiths described how each of the above theorists, in one respect oranother, saw law in legal pluralist terms. In the end he adopted Moore'sconception:

'Legal pluralism' refers to the normative heterogeneity attendant upon the fact that socialaction always takes place in a context of multiple, overlapping 'semi-autonomous socialfields'...."

He also used Moore's notion to define law: 'law is the self-regulation of a"semi-autonomous social field".' s Significantly, at the outset Mooreexpressed discomfort with using the label 'law' for the rules produced by hersemi-autonomous social fields, and proposed instead the unwieldy term'reglementation', 9 which, understandably, did not catch on.

One aspect of strong legal pluralism I wish to highlight is that the concepthas been developed predominantly by legal anthropologists or lawyersinterested in anthropology, though many adherents are sociologists. While theline separating anthropology and sociology has never been absolutely sharp,one long-standing distinction has been that anthropologists studied other(non-Western) societies, whereas sociologists studied their own society.Naturally, their respective interests and foci are reflected in the different sortsof techniques and doctrines each discipline constructs.

A second prominent characteristic of strong legal pluralism, which was amajor concern for Moore in her reluctance to use the label 'law', is the fact thatit is applied by adherents to Western societies. Unlike traditional anthro-pological work, which almost exclusively dealt with exotic far-away lands,many strong legal pluralists (most of whom are from economically-developedWestern countries) have turned their attention to their own societies. Stronglegal pluralism is aimed at home.

Thus, in terms of both source of origin and field of application, strong legalpluralism is a cross-over concept, a fact which has surprisingly significantconsequences.

I will now offer an alternative account of the intellectual history of stronglegal pluralism. Though he is not mentioned by Griffiths, the ultimateintellectual ancestor of strong legal pluralism is Malinowski. His showing thatnon-state societies nevertheless had 'law' was a superb volley in the battleagainst ethnocentrism, and made an indelible impression on the field. In hiswake, even with the admitted difficulty of pinning down precisely what 'law' is,anthropologists took for granted that it need not be attached to the state, and

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they were taught to see 'law' in terms of cultural systems of social order(although their focus narrowed to indigenous dispute-processing institutionsas the specific locus for non-state 'law').

A substantial change occurred between the era in which Malinowskiworked and the period in which Pospisil worked: there were no longer anystateless societies. Pristine versions of indigenous ordering no longer existed.To make matters worse, the spreading tentacles of state law systems incolonial and post-colonial societies made it increasingly difficult for legalanthropologists to locate pockets of their last remaining refuge - isolatedgeographical areas which the state legal system could not easily reach.

They quickly discovered, however, that even in locations where state lawcould effectively exert power, the persistence of cultural systems of order couldbe observed, thriving in the shadow of state law, often with norms andinstitutions inconsistent with those of state law, norms and institutions whichlooked very much like those they had been trained to see as non-state 'law'.What stood out in these studies was the apparent weakness of state law relativeto these cultural systems of social order. Thus, in the eyes of legalanthropologists, non-state 'law' coexisted with state law, the former sociallydominant but not given its due recognition as the real 'legal' order.

Contributing to the sense that cultural systems contained a kind of 'law', anumber of colonial state law regimes referred to or affirmatively incorporated'customary law', often subject to a repugnancy clause. This practice wasconsistent with the notion of indigenous 'law' residing in cultural relations.Lawyers and legal anthropologists were called upon to distinguish thosecultural norms which were 'legal' from those which were social or political ormoral.' The very process of engaging in this task - despite its difficulties, anddespite the suspicion which later developed among legal anthropologistsabout the very notion of customary law6 - helped solidify the assumption thatnon-state 'law' exists.

These circumstances laid the foundation for strong legal pluralism. AsMerry noted:

It is probably no accident that many of the prominent scholars in the new [strong] legalpluralism . . . began their sociolegal research in post-colonial societies in which legalpluralism was an obvious and unambiguous fact of life.62

A qualitatively different factor in this development has to do with theacademic practice of legal anthropology. Legal anthropologists who did theirfieldwork in post-colonial societies returned home to assume positions asfaculty members in universities. Since the post-colonial societies they studied-like their own societies - had state law, albeit not to the same degree ofextensiveness, it was an obvious and natural step to see the same phenomenonof plurality of normative orders at home. This final step was facilitated by theexistence of sociological work - such as Stuart Macaulay's study of non-contractual relations in business63 - which pointed out the under-recognizedinfluence of private systems of normative order, reminiscent of the culturalforms of social order observed by legal anthropologists in post-colonialsocieties.

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Further, a subtle factor in the development and perpetuation of the conceptof legal pluralism has been the survival of anthropology of law as a discretesub-field within anthropology.' 4 By inclination and training, many legalanthropologists have little interest in examining state law systems.Consequently, if there is to be a field of legal anthropology, these legalanthropologists are committed to an affirmative answer to the question ofwhether there is such a thing as non-state 'law'. Their distinct existence as legalanthropologists may depend upon it.

The nature of the symbol 'law', and nature of the study of law, have alsobeen contributing factors. In this era of the decline of religion, law has analmost unmatched symbolic prestige, rivalled in influence only by science. Itcarries connotations of right, certainty, and power. Accordingly, a tangiblesense of greater importance attaches to claims that 'law' permeates social life,as compared with similar claims about just rules or norms. Exaggerating thisperceived importance of law, many legal pluralists have degrees in law andhold positions in law faculties. Law is what they know and are experts in;talking about law is their living. They are refugees from the study of doctrinalstate law who tend to see law even when they look away. In their 'discovery' ofnon-state 'law', legal pluralists are merely articulating what their law-colouredlens leads them to perceive in law-terms. After all, it would only occur topersons trained in the law to conceive that the normative relations within thefamily constitute a 'legal' order.

Finally, although some legal pluralists have expressly denied it,65 and a fewwill admit it only in private, there appears to be a significant political impetusbehind the commitment to call certain non-state normative orders 'law'. Theimpact of this move is twofold- it lessens the stature of state law (by contestingits monopoly over law) and it raises the respect for these newly crownedversions of 'law' (by borrowing from the symbolic prestige of law).65

Out of this confluence of circumstances, strong legal pluralism was born andcontinues to thrive. Contained in this account are the grounds for the internalargument against the concept of legal pluralism.

THE INTERNAL CRITIQUE

My internal argument against the concept of legal pluralism - offered on itsown terms to show that it is more confusing than enlightening - comes to twobasic objections, the first analytical and the second instrumental. On theanalytical level, legal pluralists have constructed their notion of 'law' in a waywhich builds a fundamental ambiguity into their concept; with regard toinstrumental concerns, the implications of the concept of legal pluralism cutagainst legal pluralists' own stated agenda and interests. To establish bothobjections I must return to the work of Eugene Ehrlich and Sally Falk Moore.

Most legal pluralists, consistent with Griffiths, identify Ehrlich's 'living law'and the self-regulation of Moore's 'semi-autonomous social field' as what theymean by 'law'. 67 Both notions are alike in their focus on the 'inner ordering' of

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associations or groups. Galanter defined law by reference to this innerordering:

By indigenous law I refer not to some diffuse folk consciousness, but to concrete patterns ofsocial ordering to be found in a variety of institutional settings - universities, sportsleagues, housing developments, hospitals, etc.6"

Moore characterized the rules involved in this inner ordering as 'rules whichcould be said to have evolved 'spontaneously' out of social life'.69

Though this identification of law seems reasonably straightforward, forlegal pluralists the enquiry into 'what is law' cannot end there because the ever-persistent Malinowski problem immediately rears its unwelcome head.Galanter heroically grappled with it in a footnote:

Social life is full of regulation. Indeed it is a vast web of overlapping and reinforcingregulation. How then can we distinguish 'indigenous law' from social life generally?Consider for example the kinds of regulatory order that are involved in dating, theexchange of Christmas gifts, behavior in elevators and in classrooms. In each there areshared norms and expectations about proper behavior; violations are visited withsanctions ranging from raised eyebrows to avoidance to assaults, reputational or physical.Clearly there is some sort of regulation going on here. In spite of the continuities, it may beuseful to have a cut-off point further 'up' the scale to demarcate what we want to describeas 'law' of any sort, indigenous or otherwise ....

The scale that I visualize is one of the organization and differentiation of norms andsanctions.... The differentiation is the introduction of a second layer of control- of normsabout the application of norms - along the lines of Hart's (1961) identification of law withthe union of primary and secondary rules and Bohannon's (1965) identification of lawwith the reinstitutionalization of norms.7"

Most other legal pluralists who have attempted to tackle the problem havecome to a similar conclusion, locating 'law' on a continuum based upon thedegree of differentiation in the institutionalized identification and enforcementof norms. As I indicated earlier, this test can be traced back to the state lawmodel.

The presence of the unforgiving Malinowski problem reveals that the legalpluralists' understanding of living law resurrects a variant of Malinowski'sapproach to law; they try to solve the difficulties attendant upon this approachby supplemental resort to the state law model approach to law. Tellingly, nolegal pluralist has explained the relationship between these two ways they havepresented together of telling us what law is. It would appear that for legalpluralists 'law' is concrete patterns of social ordering, delimited by thecriterion of institutionalization.

What legal pluralists fail to see is that this refinement upon living law insertsa disabling equivocation into the heart of their concept of law. In taking thesecond step, legal pluralists traverse an ontological divide which separates thenature of the norms involved. A hint of this divide can be seen if we pose theobvious question: how are concrete patterns of social ordering (first definition)related to the institutional identification and enforcement of norms (delimitingcriterion)? The former refers to what people in a social group actually do, thepractices and customs they feel obligated to and follow as a matter of ongoingsocial action;71 the latter refers to the coercive apparatus of that social group,

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to (in legal pluralist terms) that group's 'legal' institution. Since these twoaspects are very different, and they are derived from alternative ways ofviewing law, which of the two is 'law'? I

If legal pluralists say only the former is law, they are stuck with thebedeviling Malinowski problem; if they say only the latter is law, they can talkonly about the institutions and their norms, and must stop referring toconcrete patterns of social ordering. Both options are unpalatable from theirstandpoint. There is only one remaining option. If legal pluralists respond that'both are law, seen in combination', they will be caught in a trap that turnsupside-down the essential thrust of Ehrlich's and Moore's analyses, apredicament which is the product of the legal pluralists' desire to set out theirnon-state 'law' as equivalent to or parallel with or on a continuum with statelaw.

This trap becomes apparent when we line up non-state 'law' with state lawto see how (or whether) they really are parallel. It is easier to visualize thisparallel using the following table:

'Legal' Whose SocialMechanism of Order is Nature ofSanction Controlled 'Legal' Norms

Non-State Law Institutional That of immediate Concrete patternsapparatus for social group f social orderingidentification andapplication ofnorms

State Law State legal That of societyinstitutions (courts, covered by legaletc.) system

The problem is this: legal pluralists, consistent with Ehrlich's and Moore'sanalyses, cannot fill in the empty box with concrete patterns of social ordering,because the point of both analyses was that social life is thick with group-generated patterns of normative ordering which often are inconsistent withthe dictates of state legal norms.

One strategy we can use to fill in the empty box would be to start from thestate law end, identifying the state legal norms in the usual sense of statutes orcourt decisions. But, if we are to maintain the parallel, this strategy would alsorequire that we drop reference to concrete patterns of social ordering in thenon-state 'legal' norms category and replace it with the norms identified andapplied by the non-state 'legal' institutions. These norms may or may notcoincide with the norms followed in the concrete patterns but, regardless, theywill not themselves be those concrete patterns of social ordering or the normsinvolved in these patterns; no matter how close the relationship or overlapthere is always a space between the two.72 The consequence of this second

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strategy is that we will no longer be talking about concrete patterns of socialordering.

It should by now be apparent that there is a problem with combining thetwo divergent ways of seeing 'law' that legal pluralists have jammed together.'Law' as concrete patterns of social ordering and 'law' as the institutionalizedproduction and appplication of norms, for reasons I will state shortly, simplycannot be squeezed into a single category. Before giving up entirely, let usattempt to find some other way to draw a direct parallel between state law andlegal pluralists' non-state 'law'.

We could ignore the empty box, begin with legal pluralism's first sense of'law' - concrete patterns of social ordering- and see what it matches up with instate law. This approach, however, leads to another surprising discovery. Themost direct parallel of non-state 'law' in state law is not the maintenance ofnormative order in society, it is the social order of the groups which make upthe legal institutions themselves, that is, the groups which comprise eachcourt-house, or a given legislature, or a local bar association, or each policeprecinct. The concrete patterns of social ordering within these groups are the'living law'. This is the closest parallel in state law to legal pluralists' non-state'law' because the normative ordering addressed by legal pluralism is that of thegroup or association which 'spontaneously' gives rise to and lives the lawsgenerated: 'law is the self-regulation of a "semi-autonomous social field".'73

For the semi-autonomous social field, the norms are the norms of the semi-autonomous social field; in contrast, for state law, the norms we normallyspeak of are the norms administered by the state legal system. The norms ofthe semi-autonomous social field are caught up in a self-referring circle,74

whereas state legal norms point outward, toward society at large."Try any strategy - the result will be the same. It is impossible to line up as

directly parallel, matching head to toe, legal pluralists' 'law' (in its combinedform) with state law.

There is no mystery to this intractability. Lived norms are qualitativelydifferent from norms recognized and applied by legal institutions because thelatter involves 'positivizing' the norms, that is, the norms become 'legal' normswhen they are recognized as such by legal actors. Hart explained this processthrough his combination of primary and secondary rules.76 Pursuant to thesecondary rules, legal actors make norms into primary rules, therebybestowing upon them 'legal' status. In a manner of speaking, this processsevers whatever connection the norms may have had with norms actuallyprevailing in social life.77 What the legal institution (whether the state legalinstitution or the non-state 'legal' institution) does with these norms (how theyare interpreted and applied) will be entirely independent of their nature andexistence in social life; and many of these positive legal norms will never havehad any relationship at all to lived norms - at best, they are grossapproximations (in form or effect) of actually lived norms, and many are theproduct solely of internal specialization and development of other legal normsby legal actors.

Due to its life within the legal apparatus of the state, a state law norm is law

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regardless of whether its norms actually relate to concrete patterns of socialordering. But a norm of non-state 'law' (in the concrete patterns of socialordering sense) ceases to be 'law' when it is no longer a part of the social life ofthe group. Without recognizing its full implications, Woodman made this verypoint:

The norms of folk law [non-state law] may have the same content as those of state law, buttheir criteria of existence are different. Thus if a norm of state law ceases to be sociallyobserved it may continue to be a valid norm of state law, but this is not the case with normsof folk law."

The legal pluralist desire to append the same term ('law') to both kinds ofnorms, in conjunction with the assertion that 'there is not always a clearseparation between norms of legislation and of [non-state law]', 79 indicatesthat the distinction between the two is inconsequential, one of degreee - amatter of form not substance. However, properly seen in terms of theirdifferent criteria of existence, state law norms and non-state 'law' norms aretwo starkly contrasting phenomena, not at all alike. Stated more strongly,they are ontologically distinct.

Besides constructing their notion of law in an internally disjointed andconflicting way, by assimilating these two very different kind of norms (livednorms and state law norms), legal pluralists eviscerate the essential point sopainstakingly made by Ehrlich himself- the fundamental difference betweenrules of conduct and norms for decision:

Only we must bear in mind that what has been said about the rule of conduct must not beapplied to the norm for decision; for courts may at any time draw forth a legal propositionwhich has been slumbering for centuries and make it the basis of their decisions .... Thenorms operate through the social force which recognition by a social association impartsto them, not through recognition by the individual members of the association."

Ehrlich's argument is not just the familiar one that there is a gap between thelaw in the books and the rules of social life - it is that the two are categoricallydistinct in nature. In their appropriation of Ehrlich's living law, legal pluralistshave dressed it up in new garb which conceals what he had exposed.

One source of this unintentional transmutation is the distorting effect,alluded to earlier, of legal pluralism's cross-over of the blurred boundaryseparating anthropology and sociology. Sociologist Ehrlich's objective informulating his concept of living law based upon actual patterns of socialconduct was to establish a contrast with state law. This contrast carried with ita sharp critical bite against the claim often made on behalf of state law that itenforced or reflected the norms of the community.

Early legal pluralists were trained in the anthropological tradition ofMalinowski, in which the 'law' found in ordered social conduct was seen asequivalent to or parallel with state law. Thus, legal pluralists approached froma direction which emphasized equivalence to state law (applying a concept thatoriginated in a non-state law context), and they absorbed a notion whichEhrlich constructed to highlight contrast (developed in a context with statelaw).

From the standpoint of legal pluralists' own expressed interests and

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concerns, there are two connected, negative consequences to this shift inorientation from contrast to equivalence - the first relates to their battleagainst the ideological claims made on behalf of state law, and the secondrelates to the study of post-colonial situations of transplanted law. I willaddress the issue of ideological claims first.

Our concepts shape as well as limit what we perceive. The concept of legalpluralism tends to perpetuate the assumption that state law norms andinstitutions are in fact involved in the maintenance of societal normative order- that is what legal pluralists see as the business of state law, what state lawdoes. This impression is conveyed with the legal pluralists' assertion that theyhave identified law-like phenomena of normative ordering equivalent to orparallel with (or among a plurality with) state law. Thereby, what should be anopen and sometimes pressing question - to what extent is state law reallyinvolved in maintaining societal normative ordering? - is seldom directlyposed by legal pluralists.81

State law norms, in their positivized life, exist as part of a large body ofspecialized discourse shared by the community of legal minions. As Ehrlichnoted, within the context of the legal institution state law norms internallyserve to justify legal decisions. Lawyers cite (and manipulate) these norms onbehalf of their cause, and judges cite (and manipulate) these norms as thegrounds for the outcome of a case. They are used to support the exertion ofpower by the state legal apparatus, whether or not the said exercise of powerhas anything to do with effectuating the substantive content of the norfnsreferred to in the decision authorizing the exertion of power, and whether ornot this exercise of power is related to or in the furtherance of the maintenanceof societal normative order.

The actual extent of social control activity of a given state legal system is,therefore, an empirical question to be investigated, not an aspect to bepresupposed as the defining characteristic of state law. If legal pluralistsaccepted the standard view of law as state law,82 they would be free to examinein each case, as separate questions, whether or when or in what ways state law(this legal apparatus).actually is involved in maintaining the normative orderof society. One standard, among others, applied to test state law against thisclaim would be a comparison with those lived rule systems which legalpluralists now identify as law. The critical potential of this approach is fargreater than the current claims of legal pluralists that their rules andinstitutions are 'law' too.

This conclusion leads into the argument against the concept of legalpluralism from the study of transplanted law. The distinction between rules ofconduct and norms for decision is of particular relevance in formerlycolonized areas, many of which underwent substantial transplantations oflegal norms and institutions from the colonizing power. While each situationis different, making it risky to generalize, the transplanted state law norms -invariably different from indigenous lived norms - are frequently a kind ofvirtual norm, with an existence only on paper until invoked to justify thedecisions and actions of the state legal apparatus;83 this transplanted state

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legal apparatus often exerts power only in selected geographical areas (cities),on selected subject matters (commerce, crime), and for selected purposes(economic development, political repression, maintain grip on power, directfinancial gain to certain persons or groups, symbolic gestures, legitimation).As to societal normative ordering more generally, the state legal system isoften indifferent, either in tacit recognition of its impotence, or because thepersons controlling or using the state legal apparatus have other priorities.

In these situations, the state legal system is best seen not as a mechanism formaintaining societal normative order, but as an instrument of power insociety, available primarily for the 6lites, who wield it in all sorts of ways inpursuit of their own (and sometimes public) interests.84 By seeing state lawprimarily in terms of normative order, legal pluralists tend to miss this biggerpicture. In post-colonial regions which have traditionally been their area ofspecial interest, state law is better understood by way of contrast with the livednorms of social order, not equivalence. 5

Legal pluralists may well have other political reasons for wanting to use thelabel 'legal' pluralism which I have not taken into account. As long as thesereasons are kept hidden behind the mantle of science, however, we will not beable to fully evaluate the interests at stake. Such reasons, if any exist, must beweighty if they are to offset the confusion and limitations contained within andcreated by the concept of legal pluralism.

CONCLUSION

Clearly there is a compelling intuitive impulse to describe as law or law-likecertain dispute resolution institutions and norms found in pre-state societies,and in post-colonial societies where the power of the state is weak andindigenous institutions are dominant. Just as clearly, however, there is littleintuitive attractiveness in saying that the customs of the garment industry orthe normative relations within the family are law. There are no good reasonsto fight these intuitions. They operate on two different axes.

As I have established, when legal pluralists refer to 'law', they haveidentified and run together two very different phenomena: institutionalizedidentification and enforcement of norms, and concrete patterns of socialordering. The above intuitions, respectively, match up with these twophenomena.

In the former situations, especially when the specific purpose of the enquiryis to show parallels with state law in its institutional enforcement of norms,these norms and institutions can and should be called law or law-like. Forthese purposes, legal pluralism reminds us that there is a useful comparativeperspective on state law, or put differently, a comparative perspective oninstitutionalized norm-enforcement, of which state law is just onemanifestation. In selected instances (and with due care) it will be informativeto extend the comparison to institutions of norm-enforcement in Westernsocieties. This comparative perspective is an analytical tool for orienting the

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field of study, not the foundation-stone for a universal (or postmodern) legalscience.

With regard to the latter situations, the term law should not be used becausethe normative order they describe - concrete patterns of social ordering - ismore unlike than like state law. Though legal pluralists can continue to callthis phenomenon 'law', the benefits of doing so are not obvious. NeitherMacaulay nor Moore attached the label 'law' to the lived normative ordersthey identified, with no loss of information or influence. And the insightsproduced by the works of legal pluralists seldom hinge upon their use of thelabel 'law'.

I offer a pragmatic suggestion. The legal pluralist attachment of the word'law' to lived systems of normative order adds no information, and generatesresistance and confusion. Consider instead substituting the words 'rulesystem' for the word 'legal', 86 a move which immediately discharges thebaggage carried by the term 'law', and frees 'rule system' pluralists to definetheir concept in a way which matches the phenomenon they wish to capture.

Do not be misled by this simple alteration into thinking the entire questionrests upon verbal niceties. It is a substantive change which entails giving up theclaim that lived patterns of normative ordering are 'law'. For the purposes ofthese kinds of enquiry, 'law' is the law of the state. And legal pluralists muststop charging those who hold to this view of law with suffering fromideologically-induced blindness.

To the question 'What's in a name?', the answer for legal pluralism is - verymuch - 'the coherence and development of an important conceptual insight'.

NOTES AND REFERENCES

1 S. E. Merry, 'Anthropology, Law, and Transitional Processes' (1992) 21 Ann. Rev.Anthropology 357 at p. 358.

2 The primary target of this critique is the concept of legal pluralism. For the most part I do notdirectly criticize works claiming to be legal pluralist, although I argue that the insightsprovided by these works do not depend upon the concept of legal pluralism and may behindered by it.

3 S. E. Merry, 'Legal Pluralism' (1988) Law and Society Rev. 869 at p. 870.4 Id. (emphasis added).5 S. F. Moore, 'Legal Systems of the World' in Law and the Social Sciences, eds. L. Lipson and

S. Wheeler (1986) 15.6 There is always a problem with using a descriptive group noun - such as 'legal pluralist' -

when referring to adherents of an academic movement or paradigm. As Moore notes in herreview, 'legal pluralism does not have the same meaning for everyone' (op. cit., n. 5, p. 22).Individual legal pluralists have many differences with one another, just as the 'realists' did(compare J. Frank, M. Cohen, and K. Llewellyn), and 'crits' do, and so forth. Nonetheless,there are unifying themes. Virtually all legal pluralists accept the proposition that the statedoes not have a monopoly on law, and from this single proposition many implicationsfollow. It is this core theme and its implications that I focus on when characterizing 'legalpluralism' and 'legal pluralists', granted that individual legal pluralists may take exception tocertain propositions affirmed by other legal pluralists.

7 See M. Galanter, 'Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law'(1981) 19 J. of Legal Pluralism I at pp. 17-18.

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8 Gordon Woodman observed that there is a 'folk law of games or sports' (statement of G.Woodman, 'Introduction' in People's Law and State Law: The Bellagio Papers, eds. A. Allottand G. Woodman (1985) 18.

9 See P. Fitzpatrick, 'Law, Plurality, and Underdevelopment' in Legality, Ideology, and theState, ed. D. Sugarman (1983) 159.

10 Merry, op. cit., n. 3, pp. 878-79.11 G. Woodman, English translation for 'Folk Law' entry in Dictionnaire Encyclopedie de

Thkorie et de Sociologie du Droit - Supplement, reprinted in Newsletter XX, Commission onFolk Law and Legal Pluralism (September 1991) 34. Woodman did not specifically identifylegal pluralists in this sentence, but instead referred to folk law, another name for non-statelaw.

12 J. Griffiths, 'What is Legal Pluralism?' (1986) 24 J. of Legal Pluralism 1. Although this articlewas published in 1986, an earlier unpublished draft had been circulating (and had been cited)since 1979.

13 This emphasis on Griffiths's article opens me up to the charge that I unfairly use it in a 'strawman' attack on the concept of legal pluralism. I have three responses: (i) his article is by farthe best-argued and most detailed analysis of the concept; (ii) the overwhelming majority oflegal pluralist works cite Griffiths's article (or cite works which in turn cite Griffiths) asauthority on the concept, usually without criticism or reservation; and (iii) I have filled thiswork with citations and direct quotations from other legal pluralists concurring on pointsmade in Griffiths's article. Herein, I hold legal pluralists to their words and citations, not to astraw man.

14 Griffiths, op. cit., n. 12, p. 3 (emphasis in original, citation omitted).15 Ibid., pp. 4-5 (emphasis in original).16 Galanter, op. cit., n. 7, p. 18.17 F. von Benda-Beckman, 'Comment on Merry' (1988) 22 Law and Society Rev. 897 at p. 897.18 B. De Sousa Santos, 'Towards a Postmodern Understanding of Law' in Legal Culture and

Everyday Life, ed. A.-J. Arnaud (1989) 117.19 P. Sack, 'Introduction' in Law and Anthropology, ed. P. Sack (1992) xxi.20 Hart's primary and secondary rules serve this purpose of identification. See H. L. A. Hart,

Concept of Law (1961).21 Religion and the family are believed to be outside state law, not because state law affirmatively

says so, but because many people simply believe that to be the case, as residual culturalnotions based upon natural law or natural rights.

22 Again, Griffiths is not alone among legal pluralists in making such assertions. See Galanter,op. cit., n. 7, p. 17.

23 Legal philosopher Ronald Dworkin takes a remotely analogous position. See R. Dworkin,Law's Empire (1986). Dworkin does not claim, however, that the law contains this hierarchy;rather, he argues that the liberal political morality underlying the law provides such ahierarchy.

24 See R. Cotterrell, The Sociology of Law (1984) 2-8.25 F. von Benda-Beckmann, 'Distance or Submission: On Difference in Socio-Legal Studies',

address to the Socio-Legal Group's annual conference (1989) 2.26 See M. Chiba, 'Toward a Truly International Sociology of Law Through the Study of the

Legal Pluralism in the World' in A.-J. Arnaud (ed.), op. cit., n. 18, 134 (claiming that analysts'freed from Western bias... conceptualized the term "legal pluralism"...

27 Griffiths, op. cit., n. 12, p. I.28 Ibid., p. 4. But see Benda-Beckmann, op. cit., n. 25, p. 7 (cautioning against a myth-fact

contrast of legal centralism and legal pluralism).29 Griffiths, op. cit., n. 12, p. 12.30 See T. Kuhn, The Structure of Scientific Revolutions (2nd ed. 1970). My argument is not the

idealist one that physical reality is the creation of our consciousness. It is the more limitedargument that the names, concepts, and categories through which we describe and observethis reality are socially constructed. A recent reminder of this was the discovery of a species ofalgae, Dinoflagellates, which possess characteristics of both plants and animals, categories we

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normally believe to be mutually exclusive. 'Monster of the Deep: Plant or Animal?' Int.Herald Tribune (European edition) 20 August 1992, p. 7. These algae are not freaks whichviolate -laws of nature, they just do not fit into our socially-constructed categories.

31 See generally D. R. Hiley, J. F. Bohman, and R. Shusterman (eds.), The Interpretive Turn(1991).

32 See K. Popper, The Poverty of Historicism (2nd ed. 1960) 134-36.33 Benda-Beckmann, op. cit., n. 25, p. 7.34 Chiba, op. cit., n. 26, p. 136.35 Griffiths even suggested that without the scientific (non-taxonomic) approach to law urged by

legal pluralists 'the sociology of law has no distinct empirical object to study, that is, that itcannot exist as a discipline'. J. Griffiths, 'The Division of Labor in Social Control' in TowardaGeneral Theory of Social Control Vol. 1, ed. D. Black (1984) 45.

36 See generally A. Giddens and J. Turner (eds.), Social Theory Today (1987).37 In its focus on social control, the legal pluralist view of law originated in the functionalist

social science perspective, just one perspective among many, and one not presently favouredby sociologists.

38 '[S]ociology has produced no agreement on the correct theoretical approach or perspectivefrom which to mount the search for such a [single, all-embracing] theory. This is becausesociology has always been called upon to serve a number of purposes.' J. Wilson, SocialTheory (1983) 10.

39 See, for example, Griffiths, op. cit., n. 12, pp. 13, 14, 34; Galanter, op. cit., n. 7, pp. 20, 33.40 Griffiths, op. cit., n. 12, p. 39, n. 3 (emphasis in original, citation omitted).41 B. Malinowski, Crime and Custom in Savage Society (1985 [1926]) 55.42 Ibid., p. 68.43 S. F. Moore, Law as Process (1978) 220.44 A. Hoebel, The Law of Primitive Man (1954) 28.45 M. Rheinstein, Max Weber on Law in Economy and Society (1954) 13.46 Malinowski (op. cit., n. 41, pp. 58-59) emphasized this point: 'It scarcely

needs to be added that 'law' and 'legal phenomena', as we have discovered, described, anddefined them in a part of Melanesia, do not consist in any independent institutions.'

47 Hart, op. cit., n. 20, pp. 89-96.48 See L. Fallers, 'Administration and the Supremacy of Law in Colonial Bugosa' in Social

Anthropology andthe Law, ed. I. Hammett (1977) 56; P. Bohannon, 'The Differing Realms ofthe Law' in The Ethnology of Law, ed. L. Nader (1965) 36.

49 Hart, op. cit., n. 20, pp. 89-91.50 Goodman: chairman's summary in 'Introduction', op. cit., n. 8, p. 20. A number of legal

pluralists have concluded that a non-taxonomic identification of law is the only solution tothe difficulties with locating law as a type. Accordingly, several have suggested that law can beidentified on a continuum based upon the degree of differentiation of institutionalized norm-enforcement (placing legal pluralism on this continuum along with state law).

This 'solution' does not escape the taxonomic enquiry of what law is, it presupposes theanswer. Continuums that purport to represent the entire range of a particular phenomenon,excluding all else which does not fall within its category, are implicitly taxonomic. Use of theinstitutionalized enforcement of norms as the criterion for placement on the continuummeans this characteristic defines law's 'type'.

51 Anthony Giddens's notion of the 'double hermeneutic' - which recognizes that socialscientists study and draw concepts from a social world preconstituted by shared meaning -explains the inadvisability and futility of attempts to ignore or override commonly-sharedmeanings in the name of scientific purity. A Giddens, New Rules of Sociological Method(1976) 158.

52 Woodman, op. cit., n. 11, p. 34.53 In their claim to have located an ideology-free concept which is necessary for the scientific

study of law, legal pluralists commit what Karl Popper identified as the error of'methodological essentialism' (op. cit., n. 32, pp. 28-30, 136).

54 See Moore, op. cit., n. 43, p. 17 ('The conventional category "law" (meaning rules

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enforceable by government) is a category of our own culture. When it is applied byanthropologists to societies that are very different in structure, what is being sought areanalogous phenomena.')

55 Griffiths, op. cit., n. 12, p. 14.56 Ibid., pp. 14-37.57 Ibid., p. 38.58 Id.59 Moore, op. cit., n. 54, p. 18.60 See generally Tamanaha, 'A Proposal for the Development of a System of Indigenous

Jurisprudence in the Federated States of Micronesia' (1989) 13 Hastings Int. and ComparativeLaw Rev. 71 at pp. 9 9 -106.

61 See F. Snyder, 'Colonialism and Legal Form: The Creation of Customary Law in Senegal'(1981) 10 J. of Legal Pluralism 49.

62 Merry, op. cit., n. 3, p. 874.63 S. Macaulay, 'Non-contractual Relations in Business: A Preliminary Study' (1963) 28 Am.

Sociological Rev. 55.64 See J. Starr and J. F. Collier (eds.), History and Power in the Study of Law (1989). The editors

point out that during the past decade 'several scholars have called for the abolition of theanthropology of law' (ibid., p. 2).

65 See Griffiths, op. cit., n. 35, p., 45.66 De Sousa Santos (op. cit., n. 18, p. 117) acknowledged the first consequence: 'Relativized in

this way, law in general and most particularly state law is trivialized and decanonized.'67 See, for example, Galanter, op. cit., n. 7, p. 17, n. 24; Chiba, op. cit., n. 26, p. 135; Fitzpatrick,

op. cit., n. 9, pp. 159, 161. Although it is not clear to me that Ehrlich's living law and Moore'ssemi-autonomous social field coincide, I will follow the legal pluralist lead and interpret themas consistent because my concern is with the legal pluralist understanding and position.

68 Galanter, op. cit., n. 7, pp. 17-18 (emphasis added).69 Moore, op. cit., n. 43, p. 80. She contrasted these rules with 'rules that were consciously made

by legislatures and courts and other formal agencies to produce certain intended effects' (id.).70 Galanter, op. cit., n. 7, pp. 18-19, n. 26.71 This formulation contains a straddling of sorts - a result of poor development by legal

pluralists of precisely what they mean - which should be addressed. There are three differentlevels of looking at what is involved in the notions of 'inner ordering of an association' or'concrete patterns of social ordering'. The first level is the level of action. This refers to thepatterns of actual conduct, what people are doing. The second level is the level of self-

conscious norms, that is, what the people who are doing (those involved in the action) wouldidentify as the norms they are adhering to if asked to articulate the rules they follow. Thethird level is what an observer (like a sociologist or legislator) would identify as the normsfollowed by the social actors in the course of their actions.

The complexity of the situation lies in the fact that there is seldom a correspondence

between these three levels. People often do one thing, yet articulate a different set of norms -the norms we espouse are notoriously unreliable predictors of action. In such instances the

first and second levels would diverge. The third level is suspect because it is an externalinterpretation which is a product of the interests and perspective of the observer, andconsequently is always contestable. For example, a Marxist analyst would interpret action interms different from a Freudian analyst, and as a result would see different norms at play,operating in different ways.

I have deliberately left out a fourth possibility: the norms which are followed in reality.

While we can conceive of this possibility analytically, social scientists (and legislators) cannotescape the perspective-bound third level. To do so requires access to an Archemedianstandpoint which does not exist; so it cannot be included here as a potential choice.

Consistent with the legal pluralist emphasis on actual conduct, I interpret 'concretepatterns of social ordering' in terms of what people actually do, accompanied by the felt senseof obligation which led them to act as they do. This combination can best be described asaction (plus felt obligation). By adding felt obligation as an internal (experienced)

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0 Basil Blackwell Ltd. 1993

concomitant to action, I am setting up action as the cornerstone, but limiting this tonormative oriented action (as distinct from reflex or habit). In the sense I use it, 'feltobligation' makes no commitment about the nature of the norms in operation, and focusesonly on the fact of the experience of the obligatory aspect of the action.

72 'Concrete patterns of social ordering' refers to the level of action itself, whereas the non-state'legal' institutions will be applying norms extracted from this level of action; the normsespoused by such institutions will never completely match those norms actually generating asense of felt obligation in social life. First, as I argued in the preceding footnote, there is noway to be sure that the correct norm has been identified. Assuming the correct norms, thevery process of extracting, articulating, and applying these norms ensures that they will bechanged in form, operation, and effect.

In a sense, this situation is the same as exists between the state legal system and society,brought down to the level of the semi-autonomous social field and its 'legal' institutions. Akind of reiterative regress is involved in this formulation. A 'legal' institution (of the statekind or non-state kind) can never catch up with concrete patterns of social ordering.Whenever there is an institutional apparatus for norm-enforcement, the norms recognizedand referred to by this institution will be positivized, and that very act cuts them off fromactually operative norms.

Ironically, by suggesting that non-state 'law' can be found in those situations where bodiesof observed norms are accompanied by institutionalized enforcement mechanisms, legalpluralists duplicate at the non-state 'law' level the very error that Ehrlich exposed on the statelaw level. This error is the assumption that there is a direct correspondence between actualpatterns of social conduct and the presence and actions of institutionalized norm-enforcement.

73 Griffiths, op. cit., n. 12, p. 38 (emphasis added).74 At times Moore's notion of the semi-autonomous social field appears to contain the same

internal conjunction of two different kinds of norms I have just pointed out. She talks aboutspontaneously generated rules actually followed, but she also talks about the production andapplication of rules, without addressing the relationship between the two. By her ownaccount, the semi-autonomous social field was intended primarily to serve as amethodological device for orienting the field of study (op. cit., n. 43, p. 78). When confined tothese purposes, the semi-autonomous social field is an excellent concept. When required tobear the analytical weight legal pluralists place on it, the semi-autonomous social field isinadequate to the task.

75 There are state legal norms which apply inward. These are Hart's secondary rules, the normsfollowed by members of the legal institutions in the identification and application of theprimary rules. However, when legal pluralists refer to state law, that reference is ordinarily toprimary rules, and these are the rules which point outward to society.

76 See Hart, op. cit., n. 20, pp. 89-96.77 Legal anthropologists have witnessed at first hand one manifestation of this positivizing

severance in colonial and post-colonial countries which have attempted to incorporatecustomary norms into the state legal system. Woodman concluded that 'the norms cannotretain their original content as components of a different system' (Woodman, 'CustomaryLaw, State Courts, and the Notion of Institutionalization of Norms in Ghana and Nigeria' inop. cit., n. 8, p. 157).

78 Woodman, op. cit., n. 11, 34. Despite recognizing this distinction, Woodman goes on toassert that 'there is not always a clear separation between norms of legislation and of folk law'(id.).

79 Id.80 E. Ehrlich, quoted in Griffiths, op. cit., n. 12, p.-26.81 Legal pluralists (and legal sociologists generally) have repeatedly shown that social norms (or

non-state 'law') often conflict with and are more compelling than state legal norms. Theirpoint is that the state is not always successful in its efforts in relation to normative ordering. Iam suggesting a different tack: we should not automatically see the state legal system as aninstitution involved in maintaining normative order. It often does more than that and less

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than that. We should view it as a socially-constructed power-yielding apparatus, thenobserve what this apparatus does.

82 Legal pluralists under attack for their problems with identifying what law is will oftenrespond by pointing out that there are also problems with identifying state law. Yes, but theproblems are not of the same order. We can always begin with the internal perspective, askingthe legal actors what they see as law. The messy part is that each state law system may have adifferent answer, though with the world-wide spread of state law through transplantation theactual range of disagreement will not be substantial. No matter how large the variation, it willnot surmount the problem legal pluralists face of not being able to distinguish 'law' from therest of social life.

83 See generally B. Tamanaha, Understanding Law in Micronesia: An Interpretive Approach toTransplanted Law (1993).

84 A recent anthology on legal anthropology, which expressly did not use the legal pluralismparadigm, chose to focus on this element of power. See Starr and Collier (eds.), op. cit., n. 64.

85 Although the difference between contrast and equivalence is primarily one of orientation andemphasis, legal pluralists have been led into egregious errors by their assumption ofequivalence. Masaji Chiba made such a mistake in his book Legal Pluralism: Toward AGeneral Theory Through Japanese Legal Culture (1989). Chiba used the contrasting legalcultures to explain the conflict precipitated upon Japan's announcement of a plan to disposeof radioactive waste in thePacific Ocean, which provoked an expression of outrage fromMicronesia and other Pacific area governments (pp. 183-211). Chiba compared Japaneseattitudes towards state law with Micronesian cultural attitudes about ownership of andresponsibility for property. His point was that the Micronesians have more cultural respect intheir relationship with the land and sea (p. 196).

Chiba's analysis is an example of the worst kind of (unintentional) nativism. BecauseChiba saw the Micronesian cultural notions of property as 'law' (of the legal pluralist sort),he believed that it was appropriate to compare with with Japanese attitudes to state law. Butthe Micronesians also have a state legal system (I worked in Micronesia as a state lawyer from1986 to 1988). The state legal system is staffed almost entirely by expatriate lawyers, mostfrom the United States of America, who almost certainly represented the Micronesiangovernment in its protest. Moreover, most Micronesian government officials are well-educated (many are educated in the United States of America) and familiar with Westernnotions of property. In other words, in all likelihood Micronesian cultural attitudes towardproperty and their relationship with land and sea had very little to do with the decision toprotest against Japan's plan to dump nuclear waste in the ocean. Like everyone else whoprotested, the Micronesians protested because the plan threatened their environment andconsequently their lives.

Again, Chiba was led in the wrong direction by the legal pluralist assumption that livedsocial norms are 'law', equivalent to state law for analytical purposes. He compared this 'law'with state law in his own society and ignored the state law system in Micronesian society.

86 In part, I suggest the term 'rule system' because the legal pluralist notion of concrete patternsof social ordering bears a strong resemblance to Peter Winch's notion (elaborating uponWittgenstein) that ongoing social behaviour is a matter of following rules (P. Winch, TheIdea of a Social Science (1958)).

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