6 things you should know about Legal Pluralism

1. What is it?

Sociological research posits that the state legal system interacts with other forms of “law” or normative ordering, although the units of reference are disputed. In plain language, this means that while some speak of “law” others prefer to refer to “normative orderings”, “legal systems”, and “informal codes”. This approach to the study of law is called “Legal Pluralism”. 

2. What does it say?

Legal pluralists argue that the power and authority of the law should be analysed from a post-modern anthropological perspective. This means questioning established definitions and delineations within legal discourse.

3. “Weak” or “State” Pluralism

This form of legal pluralism is associated with the imposition of colonial law. It describes pluralism in terms of state authorities accommodating legal and customary norms (which they find acceptable) from colonised societies. As such, it describes a sort of “internal pluralism”, reflecting the plural sources of input into sovereign authorities’ institutions.
Legal systems which adhere to this approach face three important challenges:
  1. destruction of minority laws by incorporative corruption;
  2. an “othering” of those who adhere to “non-state”, albeit accepted laws, creating a threat to legal equality;
  3. complex systems of rights and norm balancing, person identification and categorisation.

4. “Strong” or “Deep” Pluralism

Deep or strong legal pluralism attempts to frame an empirical reality of the daily life of social groups an individuals by challenging the legal centralist view that social principles are solely functions of state law, i.e. that state law and society exist in a bidirectional, exclusive relationship, influencing each other in a vacuum separate from other sources of normative ordering.
This means that centrally, strong legal pluralism purports that the boundaries between state authoritative law and other institutional and social orderings are blurred, and that what we define as “law” should depend on the influence exerted on the lives of individuals.

5. Globalisation does not challenge state law in favour of strong legal pluralism

Question: “The mobility of people and law in a transnational world challenges the notion of a single site of legal sovereignty in favour of a more multi-faceted concept of law which acknowledges that “state law is not the only source of power” –  Discuss.

What is challenged by the mobility of people and law is the concept that one state (particularly that of nationality) is the central source of coercive power in the everyday life of individuals. 
However, the sovereignty of the state as a source of legal legitimacy may continue to hold up to social scientific inspection: it depends on the de jure and de facto sources of authority in the given state e.g. divine right, wealth, social contract, class, conquest. 
Further, the mobility of law i.e. in Trans-National Corporations’ contracts, simply demonstrates a Foucauldian model of disseminated power through the ubiquitous wielding of sovereign authority as a source of pressure, such as via arbitration clauses etc. 

6. The value of legal pluralism is in its accommodation of diversity.

The value of legal pluralism is that it accommodates diversity by according legitimacy to a number of different perspectives on law by upholding a range of narratives that might otherwise be suppressed (by a traditional or legal formalist view of law) – Discuss. 

legal pluralism recognises more fo law’s relationships with affecting factors and alternative normative pressures, and therefore paints law as more responsive and consequently more powerful and with more utility.
By incorporating a range of narratives into the approach to the construction of law, legal pluralism outlines the democratic legitimacy created by the incorporation of those diverse narratives. Further, this ensures that legal legitimacy is based on its democratic counterpart, regardless of political system, and not centralised de jure sovereign power.
But what kind of diversity?
Pluralism accommodates the diversity of experiences and utilities of law which individuals have. This may have developed due to the expansion of law into new areas of life over time, i.e. interpersonal relationships, travel and migration, privacy, security etc. However, it is key that the diversity accommodated is limited.

So, what’s the sum lowdown on this legal pluralism thing? It’s incredibly important that legal professionals recognise the pluralism which exists in normative pressures on the lives of individuals, and the multiplicitous ways in which legal persons utilise law. This holds strong links with ideas of civil and political rights. For example, the right to a fair trial is universal, but will not be exercised by every person simultaneously, or for some even at any occasion in there life. Regardless, it is essential that we uphold and recognise the importance of this reality.
Legal Pluralism may be defined under a banner of sociology, but it is essentially a jurisprudential mandate to the underlying purpose of justice which the law normatively embodies.


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