Legal Pluralism and Analytical Jurisprudence: An Inapposite Contrast.

• Author: Fabra-Zamora, Jorge Luis

Introduction I. Preliminary Clarifications A. Legal Pluralism as a Fact B. Legal Pluralism as an Intellectual Tradition C. Two Understandings of Analytical Jurisprudence II. Changing the Subject A. Doctrinal Opposition B. Politico-Moral Opposition C. The Package-Deal Oppositions III. The Equation between Law and State A. Kelsen's Account B. Hart's Account C. Raz's Account D. The Explanatory Centrality of the State E. A Non-Statist Haitian Account IV. The Conceptual Problem A. The Priority of the Conceptual Question B. Misguided Definitional Projects C. Unwarranted Skepticism V. Main Consequences A. The Legal Pluralist Tradition B. Pluralist Jurisprudence Conclusion Introduction

Since the 1970s, much of the academic discussion regarding the existence, operation, and legitimacy of putative forms of non-state legal phenomena has been advanced under the heading "legal pluralism." (1) Empirical and legal scholars who self-identify with this label often characterize it by way of a contrast with "centralist" or "monist" views, which are chiefly attributed to "orthodox," "mainstream," or "established" theories of law. Below, I will more precisely identify the object of the pluralist opposition with one particular theoretical project widely known as "analytical jurisprudence."

This article criticizes the foundational pluralist opposition to analytical jurisprudence, which partly characterizes legal pluralism as an intellectual tradition. Part I clarifies the contested terms of the dispute by distinguishing between different understandings of legal pluralism and analytical jurisprudence. The article then identifies three primary defects in the pluralist charge. First, Part II describes how the pluralist opposition to analytical jurisprudence conflates conceptual questions of jurisprudence with doctrinal and politico-moral inquiries. Second, Part III explains that self-styled pluralists misattribute to jurisprudents an equation between law and state. Here, the article introduces the neglected distinction between the concepts of law and legal systems that allows for a more robust response to the pluralist charge. Third, Part IV claims that while self-styled pluralists recognize the need to resolve the storied conceptual question of analytical jurisprudence, many of them rely on reductive, long rejected definitional projects. Part V further argues that the recognition of these shortcomings influences the legal pluralist agenda and the reconciliatory project of "pluralist jurisprudence." In conclusion, the legal pluralist tradition should put this trio of recurrent defects to rest.

1. Preliminary Clarifications

   I begin my argument by illuminating the terms of the dispute, legal pluralism and analytical jurisprudence, both of which have been subject to persistent confusion and controversy. For the sake of clarity, I shall distinguish between two understandings of each of these notions.

   1. Legal Pluralism as a Fact

      Legal pluralism is one of the central themes of contemporary legal studies. It has been described as "a central theme in the reconceptualization of the law/society relationship," (2) "[a] key concept in [the] postmodern view of law," (3) and a "new paradigm, as far as the social scientific study of law is concerned." (4) There were references to "plurality of legal systems" in Santi Romano's work, (5) and the expression "legal pluralism" was used by Georges Gurvitch to denote the possibility of several coexisting legal orders operating in a given jurisdiction. (6) However, the standard contemporary use of legal pluralism began in the 1970s in legal anthropology, legal sociology, and legal history. The work of Franz von Benda-Beckmann, (7) an influential collection of articles in French, (8) and Arthur Schiller's and M.B. Hooker's seminal publications in English (9) are often recorded as the starting point of the contemporary use.

      Legal pluralism quickly became an established concept after the canonical formulations by John Griffiths and Sally Engle Merry, (10) and has since expanded beyond its original purview. Nowadays, legal pluralism is also regarded as the "standard fare" in comparative law, international law, and transnational law. (11) Despite its success, it is not easy to formulate an account of legal pluralism that satisfies all those who self-identify with the label. Legal pluralism has been called a "sensitizing concept," (12) an "ethos," (13) a "framework," (14) a "tool," (15) and a "conception of law." (16) How- ever, like all other labels in the history of ideas (e.g., positivism, realism, naturalism, etc.), self-styled legal pluralists are united around a set of fundamental commitments. As far as I can see, the expression legal pluralism is most widely used to refer to a factual claim and an intellectual tradition.

      In its standard contemporary use, (17) legal pluralism is most commonly understood as a factual claim about the coexistence and interaction of legal phenomena. For example, it has been defined as "the existence, in a certain society, of different legal mechanisms applicable to identical situations;" (18) "the situation in which two or more laws interact;" (19) a "state of affairs, for any social field, in which behavior pursuant to more than one legal order occurs;" (20) "a situation in which two or more legal systems coexist in the same social field;" (21) "the coexistence of a plurality of different legal orders with links between them;" (22) "the coexistence of different normative orders within one socio-political space;" (23) it "might come into being wherever two or more legal systems exists in the same social field;" (24) "the condition in which a population observes more than one law;" (25) "a situation in which two or more laws (or legal systems) coexist in (or are obeyed by) one social field (or a population or an individual);" (26) "the coexistence of two or more autonomous or semi-autonomous legal orders in the same time--space context;" (27) "the deceptively simple idea that in any one geographical space defined by the conventional boundaries of a nation state, there is more than one 'law' or legal system;" (28) and "the proposition that more than one manifestation of law exists in many social arenas." (29)

      Despite differences in language and theoretical details, most of these citations converge in referring to the coexistence of legal phenomena as the distinctive element of the factual understanding of legal pluralism. I shall capture the "wide consensus" (30) of this factual understanding of legal pluralism in the following proposition:

      LP: Scenario of coexistence and interaction between semi-autonomous legal orders in a certain context.

      Some clarifications are in order. First, LP is not the simple existence of many normative orders with the capacity of changing reasons for action (social rules and conventions, religious norms, etc.), sometimes called "normative pluralism." (31) Nor does it merely assert the plurality of state legal systems (i.e., the fact that there are almost 200 state legal systems in the world), or the putative existence of different forms of non-state legal phenomena (i.e., that customary, unofficial, Indigenous, religious, international, and transnational norms are law, and not merely social norms). Instead, LP refers to the possibility that multiple legal orders different from state law coexist in the same place or community and engage in doctrinal relationships with state law and other forms of non-state legal phenomena (e.g., they coincide in regulating the same issues, they assert jurisdiction over the same agents, their norms interact, conflict, and combine, etc.). LP also assumes that the coexisting and interacting legal orders must be different from state law and claim some autonomy. Per this view, disputes internal to a normative order (e.g., the interactions between legislative and judicial powers of a state) or between a given normative order (e.g., conflicts between domestic criminal and tort law) do not typically fall within the purview of legal pluralism.

      The scenarios of coexistence and interactions are illustrated in Anglo-American contexts using a linear yet reductive genealogy. (32) "Classical" legal pluralists studied the interactions between state law and different forms of customary, folk, religious, and Indigenous law in contexts of colonization. (33) "New" legal pluralists studied situations of LP in non-colonial settings, such as the interaction between state law and unofficial laws created by associations, trade unions, marginalized groups, and religious minorities, among others. (34) A third stage comes with "global" legal pluralism, the emergence of new scenarios of coexistence with novel forms of non-state legal phenomena different from both state law and state-based international law, such as human rights law, lex mercatoria (transnational commercial law), the European Union, and multinational corporations. (35) However, situations of LP can be found in places different from those highlighted by this genealogy, even before the emergence of the label "legal pluralism." For example, there are instances of LP in Roman law, specifically in the interactions between patrician and plebeian law and between jus civile and jus gentium. (36) The fact of legal pluralism also existed in medieval European law, where different types of local, personal, and religious law intermingled, (37) and in the Ottoman Empire. (38) From a historical perspective, the state monopoly of coercion central to mainstream theories of law is a historical exception, whereas scenarios of legal pluralism have been the rule. (39) It is critical to note that, in this factual understanding, "[l]egal pluralism is not a theory of law or an explanation of how it functions, but a description ... [that] alerts observers to the fact that law takes many forms and can exist in parallel regimes." (40)

   2. Legal Pluralism as an Intellectual Tradition

      The...