Legal pluralism is one of the dominant concepts in the field of legal anthropology. Despite its relatively recent origin about two decades ago, the concept bears the marks of approaching establishment maturity. The concept is constructed upon an unstable analytical framework.
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Tamanaha, The Folly of the Social Scientific Concept of Legal Pluralism.pdf
Legal pluralism is one of the dominant concepts in the field of legal anthropology. Despite its relatively recent origin about two decades ago, the concept bears the marks of approaching establishment maturity. The concept is constructed upon an unstable analytical framework.
Legal pluralism is one of the dominant concepts in the field of legal anthropology. Despite its relatively recent origin about two decades ago, the concept bears the marks of approaching establishment maturity. The concept is constructed upon an unstable analytical framework.
Content downloaded/printed from HeinOnline (http://heinonline.org) Thu Aug 28 09:35:07 2014 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0263-323X JOURNAL OF LAW AND SOCIETY VOLUME 20, NUMBER 2, SUMMER 1993 0263-323X 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 legal pluralism bears the marks of approaching ensconced establishment maturity. There is the Commission on Folk Law and Legal Pluralism, with a registered membership list that reads like the honour roll of living legal anthropologists; there are biennial international conferences; there is a growing number of published symposia; and, the ultimate sign of academic acceptance, there is the Journal of Legal Pluralism, born out of a 1981 name-change of the old Journal of African Law Studies. Consistent with these indicia, legal pluralism is one of the dominant concepts in the field of legal anthropology. Moreover, it has been claimed, 'legal pluralism can be seen as the key concept in a postmodern 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 legal pluralism, 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 the concept as if it were well established, its basic tenets worked out and now taken for granted. 2 I will argue otherwise. The thesis of this essay is that the concept of legal pluralism is constructed upon an unstable analytical foundation which will ultimately lead to its demise. I will begin with a review of the concept of legal pluralism, emphasizing the implications of the inability of legal pluralists to locate an agreed definition of 'law'. I will set out and evaluate the stated objectives of legal pluralists. I will indicate why no attempt to formulate a single scientific or cross-cultural definition of law can succeed. I will suggest an account of the historical development of legal pluralism in order to offer an explanation of how the concept originated and why it has thrived despite its flaws. Finally, I will 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: John Griffiths, Gordon Woodman, Franz and Keebet von Benda-Beckmann, Andrew Ladley, Sally Engle Merry, and Elizabeth van Schilfgaarde. 192 C Basil Blackwell Ltd. 1993, 108 Cowley Road. Oxford OX4 IJF. UK and 238 Main Street. Cambridge. MA 02142, USA notion of 'law', and that in important respects the concept of legal pluralism cuts 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 legal pluralism 'is generally defined as a situation in which two or more legal systems coexist in the same social field'. 3 This unobjectionable definition was only the starting-point. The first sign of an analytical problem appeared just three sentences later, when Merry elaborated further: 'Recent work defines "legal system" broadly to include the system of courts and judges supported by the state as well as non-legal forms of normative ordering.' 4 The apparent contradiction (legal includes non-legal) in Merry's formulation was not due to intellectual sloppiness - she was forced into it by the fundamental assumption of legal pluralism. This assumption, as prominent legal anthropologist Sally Falk Moore put it, is that 'not all the phenomena related to law and not all that are law-like have their source in government'.' Legal pluralists insist that the state does not have a monopoly on law. 6 This is the core credo of legal pluralism: there are all sorts of normative orders not attached to the state which nevertheless are law. These non-state 'legal' orders range from pockets within state legal systems where indigenous norms and institutions continue to exert social control, to the rule-making and enforcing power of social institutions like corporations or universities, 7 to the normative order which exists within small social groups, from community associations to little-league baseball,' down to and including even the family. 9 As should be immediately apparent, so generous a view of what law is slippery slides to the conclusion that all forms of social control are law. Not only does the term 'law' thereby lose any distinctive meaning - law in effect becomes synonymous with normative order - other forms of normative order, like moral or political norms, or customs, habits, rules of etiquette, and even table manners are swallowed up to become law. The seriousness of this problem 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 and circumscribe these forms of ordering. Where do we stop speaking of law and find ourselves simply describing social life? Is it useful to call all of these forms of ordering law? In writing about legal pluralism, I find that once legal centralism has been vanquished, calling all forms 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 the legal includes the non-legal (as Merry so aptly put it). The only apparent solution to this problem is to come up with a definition of law independent of the 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 succeeded in becoming a consensus favourite. Thus, legal pluralists are left with the assertion that the legal includes the non-legal, while unable to provide a 193 Basil Blackwell Ltd. 1993 certain standard by which we are to identify the distinctively legal (now in the broader legal pluralist sense) from the truly non-legal (those normative orders even legal pluralists would not want to call law). Adherents of legal pluralism readily concede this problem but march onward undaunted, relying upon the intuitively attractive notion that even with no test to distinguish law from non-law, we know it when we see it. Gordon Woodman described this rather blithe attitude: legal pluralists 'have generally been content to describe and analyse norms and activities which seem to have a clearly legal character, without formulating a precise criterion for 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 only at the margins. Because it determines inclusion and exclusion at the outset, a definition of law must be presupposed before there can even be a question of borderline cases. Almost nothing of what I have stated thus far would come as a revelation to legal pluralists, for whom my recitation would be little more than an irritating reminder of a flaw they have learned to live with. Their faith is that the concept of 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 legal pluralism. These objectives are contained in the seminal article 'What is Legal Pluralism?" 2 written by John Griffiths, editor of the Journal of Legal Pluralism and one of the leaders in the field. Griffiths's article is the only extant comprehensive treatment of the concept of legal pluralism, and it is routinely cited by legal pluralists for the basic postulates of legal pluralism. Thus, it will be an important (though far from exclusive) source of my assertions about legal pluralism, and it will be a primary target of my critique.' 3 The first objective is an instrumental one - to combat what Griffiths dubbed the ideology of legal centralism: According to what I shall call the ideology of legal centralism, law is and should be the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state institutions. To the extent that other, lesser normative orderings, such as the church, the family, the voluntary association, and the economic organization exist, they ought to be and in fact are hierarchically subordinate to the law and institutions of the state. In the legal centralist conception, law is an exclusive, systematic, and unified hierarchial ordering of normative propositions, which can be looked at either from the top downwards as depending from a sovereign command or from the bottom upwards as deriving their validity from ever more general layers of norms until one reaches some ultimate norm.... It is the factual power of the state which is the keystone of an otherwise normative 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, and exclusive hierarchial normative ordering and the conception of the state as the fundamental unit of political organization." 194 D Basil Blackwell Ltd. 1993 Griffiths believes that lawyers, legal theorists, and social scientists view law in terms of this distorting ideology, to the detriment of their ability for accurate observation and analysis: A central objective of a descriptive conception of legal pluralism is therefore destructive: to break the stranglehold of the idea that what law is, is a single, unified, and exclusive hierarchial normative ordering depending from the power of the state, and of the illusion that 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 so often 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 banned from the research methodology of sociolegal studies." 7 Boaventura De Sousa Santos asserted that legal pluralist studies have served the important purpose of revealing that 'the claim of the state to the monopoly of the production and distribution of law is absurd'. 8 Peter Sack recently stated: Lawyers and non-lawyers must accept the plurality of 'law' and learn to handle it constructively - in theory as well as practice - instead of trying to define it away to the detriment of all of us. This implies, of course, a switch from legal positivism and its bias in favour of an increasing centralization, unification, and uniformization of 'law' to legal pluralism. 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 legal pluralism will rescue us from its deluding effects. One problem with evaluating these contentions is that legal pluralists engage 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 believe Griffiths's brief treatment, set out above, to be enough. As I will show, the notion 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 quote above on page 194 and, within the first paragraph, the first sentence from the second. The first sentence of the first paragraph - 'the law is and should be the law of the state.., exclusive of all other law'- is part of a standard widely-used definition of law, one developed out of the Austinian positivist legal tradition which identified the law as a product of the sovereign. Usually this definition is supplemented by additional criteria that indicate which commands of the sovereign are law as opposed to something else. 2 " As a definition, it is not a falsifiable ideology subject to disproof but rather a shared convention, though of course we can discard this convention for another we find preferable. Indeed, legal pluralists are attempting to do just that - substitute their view of law for the currently dominant one. To call the competing definition they wish to supplant an ideology is merely rhetorical stone-throwing. Keeping in mind its definitional element, legal pluralists are correct in so far as they mean this (and any) definition of law has ideological implications or effects. It will shape what people see as law and how they think about law. If one holds to a different definition of law - the 'really true' definition of law - 195 Basil Blackwell Ltd. 1993 from this perspective any competing definition will have the ideological consequence of perpetuating a falsehood. Thus, by branding the definition of law as deriving from the state to be an ideology, legal pluralists are saying their version of 'law' underlying legal pluralism is the objective or correct one, a claim 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 depends upon the perspective from which one speaks. Presumably legal pluralists would concede that. lawyers and legal theorists can legitimately operate from within the internal perspective to see law exclusively in terms of the state. If a judge asks a lawyer to cite the law in a case, the lawyer is in no sense deluded when responding by referring solely to statutes and court decisions. Furthermore, from within this internal state law perspective, it would be entirely justifiable to argue that legal pluralism is an ideological construct foisted upon us by legal pluralists who want to bring down state law or raise up the prestige of their version of non-state 'law'. The assertion contained in the second sentence of the first paragraph - that normative orderings such as those of church and family are subordinate to state law - does describe a belief, but whether this belief is widely held as a blanket matter is highly debatable. Certainly it depends upon which particular normative ordering one is talking about and which particular state system. In the Republic of Ireland it is unlikely that most people believe the normative ordering of the church to be beneath the law (or even look at the relationship between state law and religious norms in these terms). And few people inside or outside the country believe that in Iran church canon is beneath state law. Even in the United States of America, many people (including lawyers) would say that the normative ordering of the church and the normative ordering of the family are outside the purview of the authority of state law. 2 Many people believe - consistent with the philosophy and culture of liberalism - that these are realms of private normative ordering, prior to state law and not beneath it. Griffiths and other legal pluralists have not accounted for these common beliefs or how they square with their assertions about the nature of the ideology of legal centralism. 22 Griffiths's least credible assertions are those contained in the second paragraph. His description of law seen as 'a unified hierarchial ordering of normative propositions' leading up to an 'ultimate norm' comes straight out of the long defunct formalist perspective of law. Following the devastating realist attack on these beliefs more than fifty years ago, few lawyers today would describe the law in such terms. 2 3 But even assuming, for the sake of argument, that lawyers do see law in this way, legal pluralism is barely if at all relevant to this formalistic body of beliefs because they comprise a purely internal description of the state legal system which legal pluralism does not touch. The internal battle is fought within the field ofjurisprudence, carried on by debunkers like adherents of critical legal studies, not by legal pluralists who claim 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 196 Basil Blackwcll Ltd. 1993 scientists are blinded by this ideology is especially implausible. One of the self- professed characteristics of legal sociology is the external perspective on law which its practitioners assume by way of contrast to the lawyers' internal perspective. 4 This distinction is reflected in their work, which seldom addresses 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 and influence of the legal profession, lay attitudes toward state law, or other aspects of the state law system. These studies have significantly contributed towards demystifying the law because legal sociologists directly cltallenge the presuppositions which underlie the lawyers' internal understanding. The fact that they take state law or some aspect of it to be their object of study (as opposed to legal pluralism's version of 'law') cannot in any way be called the product of ideological delusion. The legal pluralist charge - that 'many legal sociologists submitted to, and inevitably romanticized the dominant legal system ' - is unsupportable. This perfunctory testing of the supposed ideology of legal centralism reveals much fluff surrounding one core point. Remember that Griffiths and other legal pluralists claim that legal pluralism must defeat legal centralism because it is a dominant set of false beliefs which distort how we see law. If in fact these beliefs are not false (at least with regard to lawyers), are not widely held, or do not have the deluding influence claimed (at least with regard to social scientists), then one of the 'central objectives of the descriptive conception of legal pluralism' is to combat a non-existent enemy. It would appear that legal pluralists have created a fearsome, hegemonic opponent- legal centralism - in order 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. From an anthropological point of view, this linkage of law to the state is problematic. It implies that those societies without a state have no law. Since law has for the past several centuries been seen by the West as the singular characteristic of a civilized society, the ethnocentric implication of this linkage is that pre-state societies were uncivilized. The second objective of legal pluralism - referred to implicitly by Griffiths, but a more prominent concern of earlier generations of legal anthropologists - is to combat this ethno- centricity.1 6 While opposition to ethnocentrism is laudable, that in itself does not supply a persuasive reason for adopting legal pluralism. Today state law is ubiquitous. Thus use of the state law definition would not condemn any existing society as uncivilized. Moreover, a more effective strategy would be to identify state law for what it is - a contingent development which occured initially in the West- and to suggest more appropriate cross-cultural measures of the civilization of a society, such as how generously it treats its least well off members. In any case, the attempt to measure civilization is now widely condemned as an inevitably enthnocentric, useless exercise, and has been largely abandoned. 197 (D Basil Blackwell Ltd. 1993 Adoption of the concept of legal pluralism is therefore neither necessary nor the most effective way to counter ethnocentrism. If legal pluralism is to seize the day, it must do so on its own merits. That is what the. argument from science - the third objective - attempts to accomplish. Griffiths's attack on legal centralism led directly to the claim of the scientific superiority of legal pluralism: This ideology [of legal centralism] is shown to reflect the moral and political claims of the modern nation state and to be unsuitable and obfuscatory as far as the social scientific study of legal pluralism is concerned." That is the basic import of his contrast: 'Legal pluralism is the fact. Legal centralism 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 can be 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 is arguing that legal pluralism is an unmediated look at social reality - that it even gets underneath concepts to reach things ('the facts') as they really are. After Thomas Kuhn's showing that even the natural sciences are based upon series of shared paradigms which in effect construct the facts scientists see, 30 and further, in this time of increasing sensitivity to the insights of interpretivism, 3 " including recognition that social reality is socially constructed through our ideas and beliefs, that Griffiths would make such assertions without addressing their implications is surprising. One need not be a sceptic to accept that law is a social construct and therefore there is no unmediated access to law. Law is a conceptual creation. Also for scientists, a concept 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 be making a different argument. They sometimes seem to be arguing that if one wishes to be scientific, at least in terms of an 'empirical' or 'analytical' social science, 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 an analytical concept of law which distances itself from the dominant legal ideology, or rather, from all legal ideologies that may exist in a society. 3 Masaji Chiba proclaimed that 'a sociology of law will be sure to be developed into a truly international sociology of law through this study of legal pluralism.' 34 When read together with their assertions about the blindness of social scientists induced by legal centralism, legal pluralists appear to be making the strong claim that all social scientists must or should view law in the legal pluralist way. 35 If this is their contention, it is patently untenable. The problem with such a contention is that the social sciences are characterized 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 198 4' Basil Blackwell Ltd. 1993 autopoietic version of law, Mead's symbolic interactionist version, and Marx's law as superstructure version. The social sciences generally, at least on the level of theory, are currently undergoing the uncertainty (and imposed humility) which accompanies deep critical self-examination, to the point of questioning even their own nature and validity. Considering this state of affairs, legal pluralist claims to authority from the perspective of an overarching version of 'analytical' or 'empirical' social science are difficult to fathom. 37 There can be no single social science view of law because there are many different scientific perspectives and many different objectives of enquiry. 38 Despite the sweeping impression their words convey, perhaps legal pluralists are making a less grand claim. Their argument may go as follows: (i) there is a particular phenomenon - a form of normative order or social control - which can be identified cross-culturally and across all sorts of groups; (ii) this phenomenon is 'law'; (iii) there is a plurality of social groups everywhere, 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 adds nothing beyond the boost of legitimacy which accompanies resort to the stamp of science. Science does not place weight on either side of the critical issue at stake because science does not have ultimate authority over what is or is not 'law'. Granted that normative ordering or social control are universal characteristics of social groups, the question remains, why must we take the additional 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 into reference to legal pluralism as a state of plurality of normative ordering; 39 when they get down to identifying precisely what their 'law' is it usually amounts to some variant of social control. Yet normative ordering is, well, normative ordering; social control is social control. Both terms have been widely used as sociological concepts, and neither is usually seen as coextensive with law. Nevertheless, at least a few legal pluralists insist that 'all social control is more or less 'legal'.'" This position tramples everyday usage of these very familiar terms. Law, by our common understanding, is something distinct from the notions of normative order or social control. What that something is depends upon how we define law. WHAT IS 'LAW'? Legal anthropologists, legal sociologists, and jurisprudence scholars have long 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 which enforce the norms, or use some combination of both. 199 e Basil Blackwell Ltd. 1993 In his classic work Crime and Custom in Savage Society, Malinowski focused on norms: 'The rules of law stand out from the rest in that they are felt and regarded as the obligations of one person and the rightful claims of another.' 4 ' Malinowksi added 'that reciprocity, systematic incidence, publicity, and ambition will be found to be the main factors in the binding machinery of primitive law'. 42 The problem with Malinowski's definition is the same one which plagues legal pluralists today: his conception 'was so broad that it was virtually indistinguishable from a study of the obligatory aspect of all social relationships'. 3 To solve this problem theorists examined more carefully the element of social sanction. While many social norms are felt to be obligatory, not all infractions result in sanction. Eliminating those which are not backed up by sanction offers an easy way to narrow the list of eligible norms. This move, however, leads to another difficult problem. There are varying degrees of sanction and they assume different manifestations, some of which we do not want to call law. For example, social disapprobation is probably the most prevalent sanction imposed upon infraction of norms, but that does not seem to 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 resist calling such action law. For us law has the character of involving a public, not private, 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 the application of physical force by an individual or group possessing the socially recognized privilege of so acting." Hoebel's definition moved in the direction of focusing on the institutionalized enforcement of norms. However, his formulation is at once too loose and too restrictive to be satisfactory: too loose because it is still broad enough to include certain types of retaliatory actions we would call politics or violence, not law; too restrictive because the penalty is narrowly conceived - many of our 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 'coercive apparatus,' i.e., that there are one or more persons whose special task is to hold themselves ready to apply specially provided means of coercion (legal coercion) for the purpose of norm enforcement." Again, the definition goes too far for cross-cultural purposes. Not all pre-state societies had a specialized staff for norm enforcement. 6 One of the most influential tests has been formulated by positivist jurisprudence scholar H. L. A. Hart. According to Hart, law exists where there is a combination of primary rules of obligation, and secondary rules to identify, apply, and change the primary rules. 47 A number of anthropologists have adopted a version of Hart's test. 48 From a cross-cultural standpoint, however, this test is problematic because, as Hart admitted, 49 it excludes normatively ordered pre-state communities which lacked secondary rules. 200 D Basi! Blackwell Ltd. 1993 There are other tests. None have gained universal acceptance. A group of prominent legal pluralist scholars announced their conclusion that non-state 'law' cannot be identified as a type; the most that can be identified is 'the differentiation and organization of the generation and application of norms'." Again the question must be asked, in view of this admitted inablility, how can adherents so insistently (and aggressively) use the label legal pluralism? My reason for setting out this list is not to reiterate the series of attempts and failures to devise a universally acceptable scientific or cross-cultural definition of law. Legal pluralists are intimately familiar with such attempts. Rather, my purpose is to point out an often overlooked characteristic of these proposed definitions. With the notable exception of Malinowski's, every one of these attempts draws upon the same strategy: their proponent locates the criteria for law by extracting or emulating those elements which appear to be essential to state law, then subtracting all trappings of the state. Similarly, the main test we apply to determine whether the proposed definition captures what we mean by law is to measure it against our intuitions about the essential characteristics of state law, sans the state. These are rational strategies; indeed, since the state law model is our paradigm for what the concept 'law' means, it is the only sensible way to approach the task.' The confusion engendered by Malinowski's approach is testament to the perils of undertaking an alternative tack. The implication of this point for legal pluralism should be apparent. Many legal pluralists insist that state law is irrelevant to law as a concept (freed 'from all legal ideologies'). Cross-cultural and scientific conceptions of law disavow any connection to the state because the state is not a universal social fact but a temporally and geographically contingent occurrence. Hence Woodman's assertion: '[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 be severed. State law, the reigning notion of law, originated in the separation of state from society, with its concomitant division of public and private spheres. In the above definitions, the search for the institutional aspect of norm formulation or enforcement is nothing other than a smuggled reference to the state bureaucratic legal apparatus. Thus, the state law model inescapably provides the kernel of the concept of non-state 'law'. The root source of the unbudging barrier subverting all attempts at formulating a universal scientific or cross-cultural definition of law lies in the goal itself. This goal is based upon the faith of the scientific or theoretical attitude that there is something beneath the culturally generated, state-linked notion of law - that law is a fundamental category which can be identified and described, or an essentialist notion which can be internally worked on until a pure (de-contextualized) version is produced. 53 Unsettling as it may be, there is nothing beneath the culturally-generated notion. 4 Every scientific discipline is free to devise a definition of law suited to its own particular objectives, although there are many bodies of scientific discourse 201 Basil Blackwell Ltd. 1993 and each is entitled to do the same. Kept within the bounds of its own discourse, any such proffered definition of law is legitimate. Beyond these bounds, when adherents assert that the commonly-held definition of law is false, or that they alone have the one correct, factual version of law, they exceed their scope of authority. Legal pluralists must retreat to the more modest position that their version of law is one among many, useful for certain purposes but not others. With these corrections, very little is left of their many extravagant claims. Legal pluralism must be of instrumental value if we are to adopt it - it must edify more than obscure. WHY 'LEGAL' PLURALISM? The crux of my argument, which I will elaborate in the next section, is that an inadvertent wrong turn was made in the theoretical development of this concept. Curiously, several of the problems examined in detail in this article are not new. Yet adherents of legal pluralism have continued to press forward with an impressive degree of success in attracting new followers. Not only does this unusual situation beg an explanation, it also raises the real possibility that any attempt to pierce the legal pluralism balloon will pass ignored. Thus, in addition to helping my substantive argument, I hope this brief account of why the concept of legal pluralism developed in the way it has will lead to a reflexive examination by legal pluralists that helps break the momentum of the doctrine. As with so much in this field, the standard account for the development of the concept of legal pluralism can be found in Griffiths's programmatic article on legal pluralism. Griffiths distinguished two kinds of legal pluralism, which he polemically tagged 'weak' and 'strong'. For the paradigm example of weak legal pluralism Griffiths pointed to M. B. Hooker's Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws. Weak legal pluralism developed out of studies of transplanted law, where the focus was on the incorporation of customary law, or other sorts of indigenous norms and institutions, within the state law regime. Law is pluralistic in these situations in the sense that within the state law system there are different kinds of legal norms - and sometimes different kinds of institutions, such as informal or village courts -which apply or not depending upon the subject-matter at issue or 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 another form of legal centralism because its implicit message is that all other laws should be organized in a hierarchy beneath state law. He argued that weak legal pluralism is the product of lawyers; 55 it has no connection with strong legal pluralism other than the confusing overlap of labels. Strong legal. pluralism, Griffiths' preferred version, is the product of social scientists. The discussion in this article has been based upon strong legal 202 (D Basil Blackwell Ltd. 1993 pluralism - the scientific observation of the fact of a plurality of legal orders which exists in all societies. Intellectual forerunners of strong legal pluralism identified by Griffiths include anthropologist Leopold Pospisil, who emphasized 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' groups in society; Eugene Ehrlich's theory of 'living law', the lived rules of normative order which he contrasted to state law; and Sally Falk Moore's theory of the rule-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 or another, saw law in legal pluralist terms. In the end he adopted Moore's conception: 'Legal pluralism' refers to the normative heterogeneity attendant upon the fact that social action always takes place in a context of multiple, overlapping 'semi-autonomous social fields'...." 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 Moore expressed discomfort with using the label 'law' for the rules produced by her semi-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 concept has been developed predominantly by legal anthropologists or lawyers interested in anthropology, though many adherents are sociologists. While the line 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 sorts of techniques and doctrines each discipline constructs. A second prominent characteristic of strong legal pluralism, which was a major concern for Moore in her reluctance to use the label 'law', is the fact that it 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-developed Western countries) have turned their attention to their own societies. Strong legal pluralism is aimed at home. Thus, in terms of both source of origin and field of application, strong legal pluralism is a cross-over concept, a fact which has surprisingly significant consequences. I will now offer an alternative account of the intellectual history of strong legal pluralism. Though he is not mentioned by Griffiths, the ultimate intellectual ancestor of strong legal pluralism is Malinowski. His showing that non-state societies nevertheless had 'law' was a superb volley in the battle against ethnocentrism, and made an indelible impression on the field. In his wake, 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 203 Basil Blackwell Ltd. 1993 they were taught to see 'law' in terms of cultural systems of social order (although their focus narrowed to indigenous dispute-processing institutions as the specific locus for non-state 'law'). A substantial change occurred between the era in which Malinowski worked and the period in which Pospisil worked: there were no longer any stateless societies. Pristine versions of indigenous ordering no longer existed. To make matters worse, the spreading tentacles of state law systems in colonial and post-colonial societies made it increasingly difficult for legal anthropologists to locate pockets of their last remaining refuge - isolated geographical areas which the state legal system could not easily reach. They quickly discovered, however, that even in locations where state law could effectively exert power, the persistence of cultural systems of order could be observed, thriving in the shadow of state law, often with norms and institutions inconsistent with those of state law, norms and institutions which looked 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 relative to these cultural systems of social order. Thus, in the eyes of legal anthropologists, non-state 'law' coexisted with state law, the former socially dominant but not given its due recognition as the real 'legal' order. Contributing to the sense that cultural systems contained a kind of 'law', a number of colonial state law regimes referred to or affirmatively incorporated 'customary law', often subject to a repugnancy clause. This practice was consistent with the notion of indigenous 'law' residing in cultural relations. Lawyers and legal anthropologists were called upon to distinguish those cultural norms which were 'legal' from those which were social or political or moral.' The very process of engaging in this task - despite its difficulties, and despite the suspicion which later developed among legal anthropologists about the very notion of customary law 6 - helped solidify the assumption that non-state 'law' exists. These circumstances laid the foundation for strong legal pluralism. As Merry noted: It is probably no accident that many of the prominent scholars in the new [strong] legal pluralism . . . began their sociolegal research in post-colonial societies in which legal pluralism was an obvious and unambiguous fact of life. 62 A qualitatively different factor in this development has to do with the academic practice of legal anthropology. Legal anthropologists who did their fieldwork in post-colonial societies returned home to assume positions as faculty members in universities. Since the post-colonial societies they studied- like their own societies - had state law, albeit not to the same degree of extensiveness, it was an obvious and natural step to see the same phenomenon of plurality of normative orders at home. This final step was facilitated by the existence of sociological work - such as Stuart Macaulay's study of non- contractual relations in business 63 - which pointed out the under-recognized influence of private systems of normative order, reminiscent of the cultural forms of social order observed by legal anthropologists in post-colonial societies. 204 (D Basil Black.ell Ltd. 1993 Further, a subtle factor in the development and perpetuation of the concept of legal pluralism has been the survival of anthropology of law as a discrete sub-field within anthropology.' 4 By inclination and training, many legal anthropologists have little interest in examining state law systems. Consequently, if there is to be a field of legal anthropology, these legal anthropologists are committed to an affirmative answer to the question of whether there is such a thing as non-state 'law'. Their distinct existence as legal anthropologists may depend upon it. The nature of the symbol 'law', and nature of the study of law, have also been contributing factors. In this era of the decline of religion, law has an almost unmatched symbolic prestige, rivalled in influence only by science. It carries connotations of right, certainty, and power. Accordingly, a tangible sense of greater importance attaches to claims that 'law' permeates social life, as compared with similar claims about just rules or norms. Exaggerating this perceived importance of law, many legal pluralists have degrees in law and hold 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 doctrinal state law who tend to see law even when they look away. In their 'discovery' of non-state 'law', legal pluralists are merely articulating what their law-coloured lens leads them to perceive in law-terms. After all, it would only occur to persons trained in the law to conceive that the normative relations within the family constitute a 'legal' order. Finally, although some legal pluralists have expressly denied it, 65 and a few will admit it only in private, there appears to be a significant political impetus behind the commitment to call certain non-state normative orders 'law'. The impact of this move is twofold- it lessens the stature of state law (by contesting its monopoly over law) and it raises the respect for these newly crowned versions of 'law' (by borrowing from the symbolic prestige of law). 65 Out of this confluence of circumstances, strong legal pluralism was born and continues to thrive. Contained in this account are the grounds for the internal argument against the concept of legal pluralism. THE INTERNAL CRITIQUE My internal argument against the concept of legal pluralism - offered on its own terms to show that it is more confusing than enlightening - comes to two basic objections, the first analytical and the second instrumental. On the analytical level, legal pluralists have constructed their notion of 'law' in a way which builds a fundamental ambiguity into their concept; with regard to instrumental concerns, the implications of the concept of legal pluralism cut against legal pluralists' own stated agenda and interests. To establish both objections 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 they mean by 'law'. 67 Both notions are alike in their focus on the 'inner ordering' of 205 Basil Blackwell Ltd. 1993 associations or groups. Galanter defined law by reference to this inner ordering: By indigenous law I refer not to some diffuse folk consciousness, but to concrete patterns of social ordering to be found in a variety of institutional settings - universities, sports leagues, housing developments, hospitals, etc. 6 " Moore characterized the rules involved in this inner ordering as 'rules which could be said to have evolved 'spontaneously' out of social life'. 69 Though this identification of law seems reasonably straightforward, for legal 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 reinforcing regulation. How then can we distinguish 'indigenous law' from social life generally? Consider for example the kinds of regulatory order that are involved in dating, the exchange of Christmas gifts, behavior in elevators and in classrooms. In each there are shared norms and expectations about proper behavior; violations are visited with sanctions 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 be useful to have a cut-off point further 'up' the scale to demarcate what we want to describe as 'law' of any sort, indigenous or otherwise .... The scale that I visualize is one of the organization and differentiation of norms and sanctions.... The differentiation is the introduction of a second layer of control- of norms about the application of norms - along the lines of Hart's (1961) identification of law with the union of primary and secondary rules and Bohannon's (1965) identification of law with the reinstitutionalization of norms. 7 " Most other legal pluralists who have attempted to tackle the problem have come to a similar conclusion, locating 'law' on a continuum based upon the degree of differentiation in the institutionalized identification and enforcement of norms. As I indicated earlier, this test can be traced back to the state law model. The presence of the unforgiving Malinowski problem reveals that the legal pluralists' understanding of living law resurrects a variant of Malinowski's approach to law; they try to solve the difficulties attendant upon this approach by supplemental resort to the state law model approach to law. Tellingly, no legal pluralist has explained the relationship between these two ways they have presented together of telling us what law is. It would appear that for legal pluralists 'law' is concrete patterns of social ordering, delimited by the criterion of institutionalization. What legal pluralists fail to see is that this refinement upon living law inserts a disabling equivocation into the heart of their concept of law. In taking the second step, legal pluralists traverse an ontological divide which separates the nature of the norms involved. A hint of this divide can be seen if we pose the obvious question: how are concrete patterns of social ordering (first definition) related to the institutional identification and enforcement of norms (delimiting criterion)? The former refers to what people in a social group actually do, the practices and customs they feel obligated to and follow as a matter of ongoing social action; 71 the latter refers to the coercive apparatus of that social group, 206 (D Basil Blackwell Ltd. 1993 to (in legal pluralist terms) that group's 'legal' institution. Since these two aspects are very different, and they are derived from alternative ways of viewing law, which of the two is 'law'? I If legal pluralists say only the former is law, they are stuck with the bedeviling Malinowski problem; if they say only the latter is law, they can talk only about the institutions and their norms, and must stop referring to concrete patterns of social ordering. Both options are unpalatable from their standpoint. 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 turns upside-down the essential thrust of Ehrlich's and Moore's analyses, a predicament which is the product of the legal pluralists' desire to set out their non-state 'law' as equivalent to or parallel with or on a continuum with state law. This trap becomes apparent when we line up non-state 'law' with state law to see how (or whether) they really are parallel. It is easier to visualize this parallel using the following table: 'Legal' Whose Social Mechanism of Order is Nature of Sanction Controlled 'Legal' Norms Non-State Law Institutional That of immediate Concrete patterns apparatus for social group f social ordering identification and application of norms State Law State legal That of society institutions (courts, covered by legal etc.) system The problem is this: legal pluralists, consistent with Ehrlich's and Moore's analyses, 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 with the dictates of state legal norms. One strategy we can use to fill in the empty box would be to start from the state law end, identifying the state legal norms in the usual sense of statutes or court decisions. But, if we are to maintain the parallel, this strategy would also require that we drop reference to concrete patterns of social ordering in the non-state 'legal' norms category and replace it with the norms identified and applied by the non-state 'legal' institutions. These norms may or may not coincide with the norms followed in the concrete patterns but, regardless, they will not themselves be those concrete patterns of social ordering or the norms involved in these patterns; no matter how close the relationship or overlap there is always a space between the two. 72 The consequence of this second 207 Basil Blackwell Ltd. 1993 strategy is that we will no longer be talking about concrete patterns of social ordering. It should by now be apparent that there is a problem with combining the two divergent ways of seeing 'law' that legal pluralists have jammed together. 'Law' as concrete patterns of social ordering and 'law' as the institutionalized production and appplication of norms, for reasons I will state shortly, simply cannot be squeezed into a single category. Before giving up entirely, let us attempt to find some other way to draw a direct parallel between state law and legal 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 in state law. This approach, however, leads to another surprising discovery. The most direct parallel of non-state 'law' in state law is not the maintenance of normative order in society, it is the social order of the groups which make up the legal institutions themselves, that is, the groups which comprise each court-house, or a given legislature, or a local bar association, or each police precinct. 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 the group or association which 'spontaneously' gives rise to and lives the laws generated: '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 normally speak of are the norms administered by the state legal system. The norms of the 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 combined form) with state law. There is no mystery to this intractability. Lived norms are qualitatively different from norms recognized and applied by legal institutions because the latter involves 'positivizing' the norms, that is, the norms become 'legal' norms when they are recognized as such by legal actors. Hart explained this process through his combination of primary and secondary rules. 76 Pursuant to the secondary rules, legal actors make norms into primary rules, thereby bestowing upon them 'legal' status. In a manner of speaking, this process severs whatever connection the norms may have had with norms actually prevailing in social life. 77 What the legal institution (whether the state legal institution or the non-state 'legal' institution) does with these norms (how they are interpreted and applied) will be entirely independent of their nature and existence in social life; and many of these positive legal norms will never have had any relationship at all to lived norms - at best, they are gross approximations (in form or effect) of actually lived norms, and many are the product solely of internal specialization and development of other legal norms by legal actors. Due to its life within the legal apparatus of the state, a state law norm is law 208 Basil Blackwell Ltd. 1993 regardless of whether its norms actually relate to concrete patterns of social ordering. But a norm of non-state 'law' (in the concrete patterns of social ordering sense) ceases to be 'law' when it is no longer a part of the social life of the group. Without recognizing its full implications, Woodman made this very point: The norms of folk law [non-state law] may have the same content as those of state law, but their criteria of existence are different. Thus if a norm of state law ceases to be socially observed it may continue to be a valid norm of state law, but this is not the case with norms of folk law." The legal pluralist desire to append the same term ('law') to both kinds of norms, in conjunction with the assertion that 'there is not always a clear separation between norms of legislation and of [non-state law]', 79 indicates that the distinction between the two is inconsequential, one of degreee - a matter of form not substance. However, properly seen in terms of their different criteria of existence, state law norms and non-state 'law' norms are two starkly contrasting phenomena, not at all alike. Stated more strongly, they are ontologically distinct. Besides constructing their notion of law in an internally disjointed and conflicting way, by assimilating these two very different kind of norms (lived norms and state law norms), legal pluralists eviscerate the essential point so painstakingly made by Ehrlich himself- the fundamental difference between rules of conduct and norms for decision: Only we must bear in mind that what has been said about the rule of conduct must not be applied to the norm for decision; for courts may at any time draw forth a legal proposition which has been slumbering for centuries and make it the basis of their decisions .... The norms operate through the social force which recognition by a social association imparts to 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 the law in the books and the rules of social life - it is that the two are categorically distinct in nature. In their appropriation of Ehrlich's living law, legal pluralists have 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 boundary separating anthropology and sociology. Sociologist Ehrlich's objective in formulating his concept of living law based upon actual patterns of social conduct was to establish a contrast with state law. This contrast carried with it a sharp critical bite against the claim often made on behalf of state law that it enforced or reflected the norms of the community. Early legal pluralists were trained in the anthropological tradition of Malinowski, in which the 'law' found in ordered social conduct was seen as equivalent to or parallel with state law. Thus, legal pluralists approached from a direction which emphasized equivalence to state law (applying a concept that originated in a non-state law context), and they absorbed a notion which Ehrlich constructed to highlight contrast (developed in a context with state law). From the standpoint of legal pluralists' own expressed interests and 209 D Basil Blackwell Ltd. 1993 concerns, there are two connected, negative consequences to this shift in orientation from contrast to equivalence - the first relates to their battle against the ideological claims made on behalf of state law, and the second relates to the study of post-colonial situations of transplanted law. I will address the issue of ideological claims first. Our concepts shape as well as limit what we perceive. The concept of legal pluralism tends to perpetuate the assumption that state law norms and institutions 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 law does. This impression is conveyed with the legal pluralists' assertion that they have identified law-like phenomena of normative ordering equivalent to or parallel with (or among a plurality with) state law. Thereby, what should be an open and sometimes pressing question - to what extent is state law really involved in maintaining societal normative ordering? - is seldom directly posed by legal pluralists. 81 State law norms, in their positivized life, exist as part of a large body of specialized discourse shared by the community of legal minions. As Ehrlich noted, within the context of the legal institution state law norms internally serve to justify legal decisions. Lawyers cite (and manipulate) these norms on behalf of their cause, and judges cite (and manipulate) these norms as the grounds for the outcome of a case. They are used to support the exertion of power by the state legal apparatus, whether or not the said exercise of power has anything to do with effectuating the substantive content of the norfns referred to in the decision authorizing the exertion of power, and whether or not this exercise of power is related to or in the furtherance of the maintenance of 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 be presupposed as the defining characteristic of state law. If legal pluralists accepted the standard view of law as state law, 82 they would be free to examine in each case, as separate questions, whether or when or in what ways state law (this legal apparatus).actually is involved in maintaining the normative order of society. One standard, among others, applied to test state law against this claim would be a comparison with those lived rule systems which legal pluralists now identify as law. The critical potential of this approach is far greater than the current claims of legal pluralists that their rules and institutions are 'law' too. This conclusion leads into the argument against the concept of legal pluralism from the study of transplanted law. The distinction between rules of conduct and norms for decision is of particular relevance in formerly colonized areas, many of which underwent substantial transplantations of legal norms and institutions from the colonizing power. While each situation is different, making it risky to generalize, the transplanted state law norms - invariably different from indigenous lived norms - are frequently a kind of virtual norm, with an existence only on paper until invoked to justify the decisions and actions of the state legal apparatus; 83 this transplanted state 210 Basil Blackwell Ltd. 1993 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, direct financial gain to certain persons or groups, symbolic gestures, legitimation). As to societal normative ordering more generally, the state legal system is often indifferent, either in tacit recognition of its impotence, or because the persons controlling or using the state legal apparatus have other priorities. In these situations, the state legal system is best seen not as a mechanism for maintaining societal normative order, but as an instrument of power in society, available primarily for the 6lites, who wield it in all sorts of ways in pursuit of their own (and sometimes public) interests. 84 By seeing state law primarily in terms of normative order, legal pluralists tend to miss this bigger picture. In post-colonial regions which have traditionally been their area of special interest, state law is better understood by way of contrast with the lived norms of social order, not equivalence. 5 Legal pluralists may well have other political reasons for wanting to use the label 'legal' pluralism which I have not taken into account. As long as these reasons are kept hidden behind the mantle of science, however, we will not be able to fully evaluate the interests at stake. Such reasons, if any exist, must be weighty if they are to offset the confusion and limitations contained within and created by the concept of legal pluralism. CONCLUSION Clearly there is a compelling intuitive impulse to describe as law or law-like certain dispute resolution institutions and norms found in pre-state societies, and in post-colonial societies where the power of the state is weak and indigenous institutions are dominant. Just as clearly, however, there is little intuitive attractiveness in saying that the customs of the garment industry or the normative relations within the family are law. There are no good reasons to fight these intuitions. They operate on two different axes. As I have established, when legal pluralists refer to 'law', they have identified and run together two very different phenomena: institutionalized identification and enforcement of norms, and concrete patterns of social ordering. The above intuitions, respectively, match up with these two phenomena. In the former situations, especially when the specific purpose of the enquiry is 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. For these purposes, legal pluralism reminds us that there is a useful comparative perspective on state law, or put differently, a comparative perspective on institutionalized norm-enforcement, of which state law is just one manifestation. In selected instances (and with due care) it will be informative to extend the comparison to institutions of norm-enforcement in Western societies. This comparative perspective is an analytical tool for orienting the 211 D Basil Blackwell Ltd. 1993 field of study, not the foundation-stone for a universal (or postmodern) legal science. With regard to the latter situations, the term law should not be used because the normative order they describe - concrete patterns of social ordering - is more unlike than like state law. Though legal pluralists can continue to call this phenomenon 'law', the benefits of doing so are not obvious. Neither Macaulay nor Moore attached the label 'law' to the lived normative orders they identified, with no loss of information or influence. And the insights produced by the works of legal pluralists seldom hinge upon their use of the label 'law'. I offer a pragmatic suggestion. The legal pluralist attachment of the word 'law' to lived systems of normative order adds no information, and generates resistance and confusion. Consider instead substituting the words 'rule system' for the word 'legal', 86 a move which immediately discharges the baggage carried by the term 'law', and frees 'rule system' pluralists to define their concept in a way which matches the phenomenon they wish to capture. Do not be misled by this simple alteration into thinking the entire question rests upon verbal niceties. It is a substantive change which entails giving up the claim that lived patterns of normative ordering are 'law'. For the purposes of these kinds of enquiry, 'law' is the law of the state. And legal pluralists must stop charging those who hold to this view of law with suffering from ideologically-induced blindness. To the question 'What's in a name?', the answer for legal pluralism is - very much - '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 not directly criticize works claiming to be legal pluralist, although I argue that the insights provided by these works do not depend upon the concept of legal pluralism and may be hindered 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 her review, '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 state does not have a monopoly on law, and from this single proposition many implications follow. It is this core theme and its implications that I focus on when characterizing 'legal pluralism' and 'legal pluralists', granted that individual legal pluralists may take exception to certain 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. 212 E Basil Blackwell Ltd. 1993 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. Allott and G. Woodman (1985) 18. 9 See P. Fitzpatrick, 'Law, Plurality, and Underdevelopment' in Legality, Ideology, and the State, 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 on Folk Law and Legal Pluralism (September 1991) 34. Woodman did not specifically identify legal pluralists in this sentence, but instead referred to folk law, another name for non-state law. 12 J. Griffiths, 'What is Legal Pluralism?' (1986) 24 J. of Legal Pluralism 1. Although this article was 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 'straw man' attack on the concept of legal pluralism. I have three responses: (i) his article is by far the best-argued and most detailed analysis of the concept; (ii) the overwhelming majority of legal pluralist works cite Griffiths's article (or cite works which in turn cite Griffiths) as authority on the concept, usually without criticism or reservation; and (iii) I have filled this work with citations and direct quotations from other legal pluralists concurring on points made in Griffiths's article. Herein, I hold legal pluralists to their words and citations, not to a straw 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 cultural notions 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 a hierarchy. 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 limited argument that the names, concepts, and categories through which we describe and observe this reality are socially constructed. A recent reminder of this was the discovery of a species of algae, Dinoflagellates, which possess characteristics of both plants and animals, categories we 213 ( Basil Blackwell Ltd. 1993 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 which violate -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 it cannot exist as a discipline'. J. Griffiths, 'The Division of Labor in Social Control' in Towarda General 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 favoured by sociologists. 38 '[S]ociology has produced no agreement on the correct theoretical approach or perspective from which to mount the search for such a [single, all-embracing] theory. This is because sociology has always been called upon to serve a number of purposes.' J. Wilson, Social Theory (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, and defined 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 of the 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 to the difficulties with locating law as a type. Accordingly, several have suggested that law can be identified 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 the answer. 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 the institutionalized enforcement of norms as the criterion for placement on the continuum means this characteristic defines law's 'type'. 51 Anthony Giddens's notion of the 'double hermeneutic' - which recognizes that social scientists study and draw concepts from a social world preconstituted by shared meaning - explains the inadvisability and futility of attempts to ignore or override commonly-shared meanings 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 214 D Basil Blackwell Ltd. 1993 enforceable by government) is a category of our own culture. When it is applied by anthropologists to societies that are very different in structure, what is being sought are analogous 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 Comparative Law 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 the anthropology 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's semi-autonomous social field coincide, I will follow the legal pluralist lead and interpret them as 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 different levels 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 the patterns 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) would identify as the norms they are adhering to if asked to articulate the rules they follow. The third level is what an observer (like a sociologist or legislator) would identify as the norms followed 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 external interpretation which is a product of the interests and perspective of the observer, and consequently is always contestable. For example, a Marxist analyst would interpret action in terms 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) cannot escape the perspective-bound third level. To do so requires access to an Archemedian standpoint 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 'concrete patterns of social ordering' in terms of what people actually do, accompanied by the felt sense of obligation which led them to act as they do. This combination can best be described as action (plus felt obligation). By adding felt obligation as an internal (experienced) 215 0 Basil Blackwell Ltd. 1993 concomitant to action, I am setting up action as the cornerstone, but limiting this to normative oriented action (as distinct from reflex or habit). In the sense I use it, 'felt obligation' makes no commitment about the nature of the norms in operation, and focuses only 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 norms espoused by such institutions will never completely match those norms actually generating a sense of felt obligation in social life. First, as I argued in the preceding footnote, there is no way to be sure that the correct norm has been identified. Assuming the correct norms, the very process of extracting, articulating, and applying these norms ensures that they will be changed 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. A kind of reiterative regress is involved in this formulation. A 'legal' institution (of the state kind 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 recognized and referred to by this institution will be positivized, and that very act cuts them off from actually operative norms. Ironically, by suggesting that non-state 'law' can be found in those situations where bodies of observed norms are accompanied by institutionalized enforcement mechanisms, legal pluralists duplicate at the non-state 'law' level the very error that Ehrlich exposed on the state law level. This error is the assumption that there is a direct correspondence between actual patterns 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 about spontaneously generated rules actually followed, but she also talks about the production and application of rules, without addressing the relationship between the two. By her own account, the semi-autonomous social field was intended primarily to serve as a methodological device for orienting the field of study (op. cit., n. 43, p. 78). When confined to these purposes, the semi-autonomous social field is an excellent concept. When required to bear the analytical weight legal pluralists place on it, the semi-autonomous social field is inadequate to the task. 75 There are state legal norms which apply inward. These are Hart's secondary rules, the norms followed by members of the legal institutions in the identification and application of the primary rules. However, when legal pluralists refer to state law, that reference is ordinarily to primary 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 incorporate customary norms into the state legal system. Woodman concluded that 'the norms cannot retain their original content as components of a different system' (Woodman, 'Customary Law, State Courts, and the Notion of Institutionalization of Norms in Ghana and Nigeria' in op. cit., n. 8, p. 157). 78 Woodman, op. cit., n. 11, 34. Despite recognizing this distinction, Woodman goes on to assert 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. Their point is that the state is not always successful in its efforts in relation to normative ordering. I am suggesting a different tack: we should not automatically see the state legal system as an institution involved in maintaining normative order. It often does more than that and less 216 (D Basil Blackwell Ltd. 1993 than that. We should view it as a socially-constructed power-yielding apparatus, then observe what this apparatus does. 82 Legal pluralists under attack for their problems with identifying what law is will often respond by pointing out that there are also problems with identifying state law. Yes, but the problems are not of the same order. We can always begin with the internal perspective, asking the legal actors what they see as law. The messy part is that each state law system may have a different answer, though with the world-wide spread of state law through transplantation the actual range of disagreement will not be substantial. No matter how large the variation, it will not surmount the problem legal pluralists face of not being able to distinguish 'law' from the rest of social life. 83 See generally B. Tamanaha, Understanding Law in Micronesia: An Interpretive Approach to Transplanted Law (1993). 84 A recent anthology on legal anthropology, which expressly did not use the legal pluralism paradigm, 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 and emphasis, legal pluralists have been led into egregious errors by their assumption of equivalence. Masaji Chiba made such a mistake in his book Legal Pluralism: Toward A General Theory Through Japanese Legal Culture (1989). Chiba used the contrasting legal cultures to explain the conflict precipitated upon Japan's announcement of a plan to dispose of radioactive waste in thePacific Ocean, which provoked an expression of outrage from Micronesia and other Pacific area governments (pp. 183-211). Chiba compared Japanese attitudes towards state law with Micronesian cultural attitudes about ownership of and responsibility for property. His point was that the Micronesians have more cultural respect in their relationship with the land and sea (p. 196). Chiba's analysis is an example of the worst kind of (unintentional) nativism. Because Chiba 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. But the Micronesians also have a state legal system (I worked in Micronesia as a state lawyer from 1986 to 1988). The state legal system is staffed almost entirely by expatriate lawyers, most from the United States of America, who almost certainly represented the Micronesian government in its protest. Moreover, most Micronesian government officials are well- educated (many are educated in the United States of America) and familiar with Western notions of property. In other words, in all likelihood Micronesian cultural attitudes toward property and their relationship with land and sea had very little to do with the decision to protest against Japan's plan to dump nuclear waste in the ocean. Like everyone else who protested, the Micronesians protested because the plan threatened their environment and consequently their lives. Again, Chiba was led in the wrong direction by the legal pluralist assumption that lived social 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 patterns of social ordering bears a strong resemblance to Peter Winch's notion (elaborating upon Wittgenstein) that ongoing social behaviour is a matter of following rules (P. Winch, The Idea of a Social Science (1958)). 217 Basil Blackwell Ltd. 1993