Legal Pluralism

Question 1

What is another term for the ‘narrow interpretation’ of legal pluralism?

Answer 1

Stata-law pluralism

Question 2

What is the definition of the narrow sense/narrow interpretation of legal pluralism?

Answer 2

It refers to the co-existence of various officially recognised state laws - does not make provisions for various laws which are unofficially observed.
Dual systems - at least two officially recognised legal systems run parallel and interact in limited, prescribed circumstances.

i.e.: Roman-Dutch law infused with English law developed through judicial case law, legislation and customary law.

Question 3

What are the two jurisprudential theories of law which go hand-in-hand with the narrow concept of legal pluralism?

Answer 3

1. Legal positivism
2. Legal centralism

Question 4

What does legal positivism refer to?

Answer 4

It entails two components:
1. Law can only be found in tangible or empirically observable sources such as legislation, case law and law of old authorities, thus
2. Law can solely be based on tangible sources and thus cannot be based on moral values.

Therefore, if this approach is followed, only the common law and official customary law will be regarded as law.

Question 5

What is legal centralism?

Answer 5

It refers to the idea that law should be state-sanctioned, uniform for everyone, “exclusive of all other law, and administered by a single set of state institutions.”

The state has the monopoly to make laws and other normative orderings such as the church, the family etc. - these are subordinate to the law and institutions of the state.

Question 6

What is deep legal pluralism?

Answer 6

It is pluralism viewed in the broader sense where it is considered a factual situation present in society with various observed legal systems.

• Dominance of state laws do not affect the continued existence of unofficial laws
• Religious legal systems such as Islamic, Hindu and Jewish law fall under deep legal pluralism

Question 7

What does the repugnancy clause?

Answer 7

• The court shall not enforce any customary law rule if it is not contrary to public policy or repugnant to natural justice, equity and good conscience.