The More the Merrier? A New Take on Legal Pluralism

Abstract

Legal pluralism provides an alternative and very useful way of thinking about the legal as well as about discourses about the legal, as it sets itself the multiple task of looking at the law and theory both from an internal and an external point of view. This article distinguishes between two main theoretical strands of legal pluralism. Empiricism-positivism includes early sociological endeavours that trace selfregulating social groups and point out that the formal law of the state is not and cannot be responsive enough to those legal orders. Anthropological legal pluralism, which studies the ways peoples living within a congruent State regulate themselves despite the existence of a central law, also belongs here. Empiricism-positivism commits the fallacy of trying to define the law criterially, thus importing in that pluralistic law the knowledge of a dominant legality. This is what the ‘other’ legal pluralism is anxious to avoid. It turns to new ways of understanding the legal and seeks to make sense of and also facilitate the interpenetration of dispersed legalities. In particular, I refer to the work of three theorists. Günther Teubner and his systemstheoretical legal pluralism, Boaventura de Sousa Santos and his suggestion that new subjectivities emerge, and Robert Cover and his account of jurisgenerative commitments and the violence committed by state law. I argue that, although they too suffer from various shortcomings, these three approaches to legal pluralism can be fruitfully combined. From that combination a new understanding of legal pluralism will emerge as the radicalization of the way we think about the legal, an understanding that collapses observation into participation and thus leaves it up to regulatory discourses themselves to organize their communication. Finally, I argue that this legal pluralistic knowledge cannot be achieved by an already established and institutionalized legal order. At a first stage it is academic legal studies that must provide a forum, in which the dispersed legal discourses and theories can reveal themselves and communicate with each other.

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