Legal Pluralism

Question 1

Legality

Answer 1

Legality = law is a part of a system of legality.

• Bourgeois legality, for example, depends on social forms such as the prison and capitalist labor relations that both support and undermine it. The prison is a condition of the existence of bourgeois legality since prison serves both as the ultimate enforcer of law and as an example of a pervasive disciplinary power that typifies modern society, yet it cannot itself incorporate bourgeois legality in its functioning
• Santos’s well-known study of law in the favelas of Brazil describes how residents of an illegal squatter settlement create their own legality using the forms and symbols of state law, the “law of the asphalt,”

Question 2

Normative orders

Answer 2

Normative order: Any system of rules and shared expectations governing a particular social situation

• State law and other normative orders are mutually constituting
• The strength of legal pluralism
• Other normative orders are informal systems in which the processes of establishing rules, securing compliance to these rules, and punishing rule breakers seem natural and taken for granted, as occurs within families, work groups, and collectives
• According to the new legal pluralism, plural normative orders are found in virtually all societies

Question 3

Legal centrism

Answer 3

Legal Centrism:

• Law is in the hands of the constitution, lawyers, books, codified
• Legal pluralism rejects this because it is everywhere
• To recognize legal pluralism at home required rejecting what Griffiths calls the “ideology of legal centralism,” the notion that the state and the system of lawyers, courts, and prisons are the only form of ordering

Question 4

Classic versus new legal pluralism

Answer 4

Classic Pluralism

• Colonization is what generated the second form of legal pluralism, being “classical” legal pluralism. This type of legal pluralism began as the colonizer state laws began competing with the laws of the indigenous people whose lands were being colonized. The reason for this legal pluralism had to do with the inevitability of dual legal systems whenever there are large movements of people to other places as done during colonization
• Generated by colonial process
  Prior to 18th century – no attempt to assert colonial jurisdiction
  Late 18th-19th centuries – colonial power exerts legal authority through “indirect rule”

Repugnancy principle + 3 basic strategies:

1. The codification of customary or religious law;
2. The application by state courts of unwritten customary or religious law in a fashion analogous to the common law; and;
3. The creation or recognition of informal or ‘customary’ courts run by local leaders

• Result = dual legal system
• Official state law versus social life
- Example: Moore’s Chagga
- “Lineage-neighborhood” complex
- Classic legal pluralism and anthropology

• Challenged “simple” model in 3 ways:
  1. Questioned hierarchical model of one legal system dominating another
  2. Conceptualized interaction between legal systems as “bidirectional”
  3. Broadened the definition of legal system → legality
• Rejecting the “ideology of legal centrism” (Merry 874)
• Link to postmodernism – Sally Engels Merry
• Legality is a social system of norms that law is only a part
• The new legal pluralism often referred to as “postmodern” legal pluralism
• This is the new legal pluralism that looks at how two or more legal systems coexist in the same social field

Question 5

Semi-autonomous social field

Answer 5

Semi-autonomous social field - can generate rules and customs and symbols internally, but that… is also vulnerable to rules and decisions and other forces emanating from the larger world by which it is surrounded.
- The semi-autonomous social field has rule-making capacities, and the means to induce or coerce compliance; but it is simultaneously set in a larger social matrix which can, and does, affect and invade it, sometimes at the invitation of persons inside it, sometimes at its own instance.

• The advantages of this concept are that the semi-autonomous social field is not attached to a single social group, that makes no claims about the nature of the orders themselves or their origin (whether traditional or imposed), and that it draws no definitive conclusions about the nature and direction of influence between the normative orders.
• Moore’s model of the semi-autonomous social field was in part an effort to explain why new laws or other attempts to direct change did not always produce the anticipated results or brought unplanned or unexpected consequences