Legal pluralism is the existence of multiple

legal system A legal system is a set of legal norms and institutions and processes by which those norms are applied, often within a particular jurisdiction or community. It may also be referred to as a legal order. The comparative study of legal systems is th ...

s within one society and/or geographical area.

History

Church and State

The notion of "parallel sovereignty" between premodern States and the

Catholic Church The Catholic Church (), also known as the Roman Catholic Church, is the List of Christian denominations by number of members, largest Christian church, with 1.27 to 1.41 billion baptized Catholics Catholic Church by country, worldwid ...

was an accepted situation in medieval and early modern Europe to such an extent that it was considered as the DNA of the occidental society. Even if this authorities were often in conflicts, Church and State were habitually supportive for each other et it's possible to called it a "legal collaborative pluralism". The theologians and jurists of the School of Salamanca like Domingo de Soto and Tomás de Mercado stimulated thus the interplay between canon and civil laws. The latest considered for example the confessor, judge of the conscience, as a veritable agent for the application of civil law.

Colonial societies

Plural legal systems are particularly prevalent in former

colonies A colony is a territory subject to a form of foreign rule, which rules the territory and its indigenous peoples separated from the foreign rulers, the colonizer, and their '' metropole'' (or "mother country"). This separated rule was often or ...

, where the law of a former colonial authority may exist alongside more traditional legal systems (

customary law A legal custom is the established pattern of behavior within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law". Customary law (also, consuetudinary or unofficial law) exists wher ...

). In postcolonial societies a recognition of pluralism may be viewed as a roadblock to nation-building and development. Anthropologists view legal pluralism in the light of historical struggles over sovereignty, nationhood and legitimacy. When the systems developed, the idea was that certain issues (such as commercial transactions) would be covered by colonial law, and other issues ( family and marriage) would be covered by traditional law. Over time, those distinctions tended to break down, and individuals would choose to bring their legal claims under the system that they thought would offer them the best advantage.

Current practice

Legal pluralism also occurs when different laws govern different groups within a country. For example, in

India India, officially the Republic of India, is a country in South Asia. It is the List of countries and dependencies by area, seventh-largest country by area; the List of countries by population (United Nations), most populous country since ...

and

Tanzania Tanzania, officially the United Republic of Tanzania, is a country in East Africa within the African Great Lakes region. It is bordered by Uganda to the northwest; Kenya to the northeast; the Indian Ocean to the east; Mozambique and Malawi to t ...

, there are special Islamic courts that address concerns in Muslim communities by following

Islamic law Sharia, Sharī'ah, Shari'a, or Shariah () is a body of religious law that forms a part of the Islamic tradition based on scriptures of Islam, particularly the Qur'an and hadith. In Islamic terminology ''sharīʿah'' refers to immutable, intan ...

principles. Secular courts deal with the issues of other communities. Since modern Western legal systems can also be pluralistic, it is misleading to discuss legal pluralism only in relation to non-Western legal systems. Legal pluralism may even be found in settings that might initially appear legally homogenous. For example, there are dual ideologies of law within courthouses in the US, as the formal ideology of law as it is written exists alongside the informal ideology of law as it is used. The discussion on the internal and external plurality of legal systems is called

sociology of law The sociology of law, legal sociology, or law and society, is often described as a sub-discipline of sociology or an interdisciplinary approach within legal studies. Some see sociology of law as belonging "necessarily" to the field of sociolo ...

. Sources of Islamic law include the

Koran The Quran, also Romanization, romanized Qur'an or Koran, is the central religious text of Islam, believed by Muslims to be a Waḥy, revelation directly from God in Islam, God (''Allah, Allāh''). It is organized in 114 chapters (, ) which ...

Sunnah is the body of traditions and practices of the Islamic prophet Muhammad that constitute a model for Muslims to follow. The sunnah is what all the Muslims of Muhammad's time supposedly saw, followed, and passed on to the next generations. Diff ...

and

Ijma Ijma (, ) is an Arabic term referring to the consensus or agreement of the Islamic community on a point of Islamic law. Sunni Muslims regard it as one of the secondary sources of Sharia law, after the Qur'an, and the Sunnah. Exactly what group s ...

, but most modern Western nation-states take the basis of their legal system from the Christian superpowers of old (Britain, France etc.). That is also why moral laws found in the

Bible The Bible is a collection of religious texts that are central to Christianity and Judaism, and esteemed in other Abrahamic religions such as Islam. The Bible is an anthology (a compilation of texts of a variety of forms) originally writt ...

have actually been made full-fledged laws, with the initial grundnorm set far back in

legal history Legal history or the history of law is the study of how law has evolved and why it has changed. Legal history is closely connected to the development of civilizations and operates in the wider context of social history. Certain jurists and his ...

, hence fulfilling the priority of both the positivists and the naturalists. The policy analyst

Hamed Kazemzadeh Hamid refers to two different but related Arabic given names, both of which come from the Arabic triconsonantal root of Ḥ-M-D (): # (Arabic: ''ḥāmed'') also spelled Haamed, Hamid or Hamed, and in Turkish Hamit; it means "lauder" or "one ...

writes, "In spite of the levelling off of many present differences under the impact of science, technology, and increased intercommunication, we cannot in any reasonably near future envisage any substantial lessening of the differences in our basic value systems, either philosophical or cultural". Legal pluralism also exists to an extent in societies where the legal systems of the indigenous population have been given some recognition. In

Australia Australia, officially the Commonwealth of Australia, is a country comprising mainland Australia, the mainland of the Australia (continent), Australian continent, the island of Tasmania and list of islands of Australia, numerous smaller isl ...

, for example, the ''Mabo'' decision gave recognition to native title and thus elements of traditional Aboriginal law. Elements of traditional aboriginal

criminal law Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and Well-being, welfare of people inclusive of one's self. Most criminal l ...

have also been recognised, especially in sentencing. That has, in effect, set up two parallel sentencing systems. Another example is the

Philippines The Philippines, officially the Republic of the Philippines, is an Archipelagic state, archipelagic country in Southeast Asia. Located in the western Pacific Ocean, it consists of List of islands of the Philippines, 7,641 islands, with a tot ...

whose customary ways of indigenous peoples in the Cordilleras are recognized by the Philippine government and in Kalinga, Bodong is the means used by the people to settle disputes: since it had been very effective for them, it is still widely practiced. There is some concern that traditional legal systems and Muslim legal systems fail to promote

women's rights Women's rights are the rights and Entitlement (fair division), entitlements claimed for women and girls worldwide. They formed the basis for the women's rights movement in the 19th century and the feminist movements during the 20th and 21st c ...

. As a consequence, members of the Committee on the Elimination of Discrimination against Women (CEDAW) have called for a unification of legal systems within countries.

In the Theory of Law

legal anthropology Legal anthropology, also known as the anthropology of laws, is a sub-discipline of anthropology that uses an interdisciplinary approach to "the cross-cultural study of social ordering". The questions that Legal Anthropologists seek to answer c ...

and

sociology Sociology is the scientific study of human society that focuses on society, human social behavior, patterns of Interpersonal ties, social relationships, social interaction, and aspects of culture associated with everyday life. The term sociol ...

, following research that noted that much social interaction is determined by rules outside of the law and that several such "legal orders" could exist in one country, John Griffiths, made a strong argument for the study of these social systems of rules and how they interact with the law itself, which came to be known as legal pluralism. This concept of legal pluralism where the law is seen as one of many legal orders has been criticized. Roberts argued that the concept of law was intrinsically linked to the notion of the

state State most commonly refers to: * State (polity), a centralized political organization that regulates law and society within a territory **Sovereign state, a sovereign polity in international law, commonly referred to as a country **Nation state, a ...

so these legal orders should not be considered similar to law. On the other hand, Tamanaha and Griffiths have argued that law should only be studied as a particular form of social order together with other rules that govern social systems, abandoning the concept of law as something worth studying.

References

Works cited

External links

McGill Centre for Human Rights and Legal Pluralism, Faculty of Law

''Law and History Review''
Vol. 42, issue 2, May 2024. Issue devoted to articles on legal pluralism. {{DEFAULTSORT:Legal Pluralism Multiculturalism Theories of law