Legal Pluralism in helping understand Cultural Diversity & The Law PDF

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Analyses varying theories of legal pluralism and if they assist in studying how legal systems have adapted to ever growing cultural societies....

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How do theories of legal pluralism help, if they help at all, in the study of cultural diversity in legal systems?

Introduction: Legal pluralism, once a specific interest in a niche discipline of legal anthropology, has now transitioned into a mainstream debate of legal systems. One can contribute this to the rise of globalisation and interconnectedness, leading to an increase in cultural diversity within societies creating a more plural society and thus forming the need for a more inclusive form of legal pluralism. The term ‘legal pluralism’ itself once had no uniformed definition, due to varying definitions from varying schools of thought such as legal philosophers, legal historians and constitutionalists.1 However, legal pluralism is now viewed in a more holistic perspective as extending the study of law beyond the state and its legal orders to include non-state-sourced forms of the law.2 In short, Legal Pluralism can be defined as the existence of multiple legal systems within a population of geographic area.3 One can infer from the depth of scholars - Gilisen, Griffiths, Menski, Chiba, Shah and many more - that legal pluralists are, generally, advocating for a more holistic conception of the law. Many, like Shah, have argued against the dual structured westernised concept of legal modernity, which has spread through colonialism or voluntary adoption. They argue that it is too narrow of a theory, which is experientially unsustainable,4 particularly when analysing cultural diversity within legal systems. 1 M. Chiba, 'Other Phases of Legal Pluralism in the Contemporary World' [1998] 11(3) Ratio Juris 228-45 2 R. Nobles and D. Schiff, 'Using Systems Theory to Study Legal Pluralism: What Could be Gained?' [2012] 46(2) Law & Society Review 265-96 3 Ibid 4 P. Shah, Legal Pluralism in Conflict (Glasshouse Press 2005) 2

The importance of legal pluralism is rarely recognised, due to many scholars focusing on creating a general legal system that can apply to all, rather than recognising that differences between cultural groups are unavoidable and the focus should be on adopting an inclusive, pluralistic legal system that can cater to all. One can see legal pluralism applied more practically in some developing countries wherein, non-state justice systems are seen too often handles disputes and retain substantial autonomy and authority. Statistics show that in developing countries an estimated 80 - 90 percent of disputes are handled outside the state justice system.5 It is important to note that all states feature legal pluralism, whether it may be expressed or implied, however their prevalence - autonomy, role and authority - of non state justice systems vary dramatically.6 It is argued that only a very small number of highly developed states have the non-state justice actors firmly under their control, due to the primary failure to understand how legal pluralism adapts with varying cultural groups.7 One can argue that Legal Pluralism and the study of cultural diversity within legal systems goes hand in hand, due to Legal Pluralism fundamentally trying to incorporate differing legal systems, particularly in a society that has varying ethnicities. Legal pluralism is seen to help the study of cultural diversity within legal systems as it outlines the various non-state justice actors and attempts to define their impact. More importantly it highlights that there are powers within the state that cannot always be controlled or influenced by a state’s government. Therefore it is vital that legal systems adapt to include greater plurality in order for a more seamless inclusion of cultural diversity within 5 Albrecht, Peter and H. M. Kyed, ‘Justice and Security: When the State Isn’t the Main Provider’ [2010] Danish Institute for International Studies Policy Brief 1 6 G. Swenson, ‘Legal Pluralism in Theory and Practice’ [2018] 20(2) International Studies Review 342-67 7 Ibid

states, particularly with increasing globalisation and interconnectedness. Hence, Legal Pluralism becomes a way of imagining the law as well as a research agenda on the interaction between law and society.8

What is cultural diversity? In order to fully understand how these varying theories of legal pluralism impact the study of cultural diversity within legal systems it is crucial to define what cultural diversity is. As outlined by Shah,9 furthering on Bhiku Parekh’s initial conception, cultural diversity refers to ‘communal diversity’. This theory outlines “several self-conscious and more or less well organised communities entering and living by their own different systems of beliefs and practices."10 Moreover, as described by Renteln, culture differs from society, as culture is an abstraction with society being a collection of individuals.11 Hence, society is visible and clear whereas culture isn’t as black and white. Therefore, as one can deduce legal pluralism is as a key model used to cope with ever growing cultural diversity in several countries and legal systems. This is primarily due to the aspect that various cultural groups usually adhere to their cultural practices and for varying cultures to exist harmoniously within a society, legal pluralism is a necessity in controlling these factors. As Shah stresses it is of utmost importance for one to re-evaluate ‘the concept of law in a culturally diverse and plural society’.12 This in order to transition

8 M.C. Locchi, Droits, Pouvoirs & Sociétés (Presses universitaires d'Aix-Marseille 2016) 139 9 Shah, n 3 10 B. Parekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory (HU Press 2000) 3 11 A.D. Renteln, The Cultural Defense (OU Press 2005) 11 12 Shah, n 3

from an, outdated, homogeneous concept of law to a more postmodern, pluralistic, conception that is reflective of its cultural diversity.13 The essence of the arguments presented from here onwards is to show the importance that legal pluralism plays in order to help the study of cultural diversity within legal systems. However, there are several benefits to legal pluralism it is important to realise that it is far from being perfect, and it is important to analyse how legal pluralism continuously adapts in order to become more inclusive for varying cultural groups.

Varying theories of Legal Pluralism: The theories regarding legal pluralism stem from scholars either focusing either on their legal systems and regions or analysing a more global context. Arguably, the most renowned legal scholars, who have set the tone for the theories and analysis of legal pluralism, in a more rounded, global perspective, are Masaji Chiba14 and Werner Menski.15 In regards to earlier conceptions of Legal Pluralism from Jacques Vanderlinden16 and Peter Stack,17 Chiba notes they are lacking in detailed elaboration.18 This is due to them not accurately identifying all the other structures of legal pluralism working in the contemporary world in addition to the basic dual-structure of 13 Shah, n 3 14 Masaji Chiba was, debatably, one of the most prolific scholars regarding Legal Pluralism. Having written several books and articles regarding the subject it can be argued that he pioneered the subject of Legal Pluralism and its impact on ethnically diverse societies to the standard that it is today. Many modern scholars analysing legal pluralism today, often use Chiba’s works as a primary reference. 15 Similarly to Chiba, Werner Menski is a world renowned lecturer and adviser on ethnic minorities and the law, with a deep understanding of the legal systems of Asia and Africa. His studies regarding legal pluralism have also help developed a modern understanding of the concept, particularly in regards to cultural diversity. 16 Vanderlinden broadly theorised legal pluralism as the existence in a certain society of different legal mechanisms to be applicable to an identical situation. 17 Stack later defined legal pluralism as a plurality of law of an ideological commitment that is never integrated in a systemic fashion but a conglomerate of (more or less) diverse phenomena. 18 Chiba, n 1

state law.19 Before one goes into depth about the coexistence of modern law and traditional law and how it impacts the study of cultural diversity in legal systems, it is important to outline Chiba and Menski’s theories of legal pluralism. Chiba’s conception of legal pluralism began with a triad structure of the law which included ‘official law’, ‘unofficial law’ and ‘legal postulates’.20 However, after further in depth analysis he concluded that this structure was too linked to “western traditions to be of value to the multicultural world.”21 Hence, Chiba transitioned this model to become even more descriptive and inclusive, conceiving the ‘three dichotomies of law in pluralism’.22 Not only does Chiba believe that these dichotomies set the standard for a concept of legal pluralism, but he believes it could shape how the law itself is viewed and structured.23 The first of these dichotomies included two elements of his initial triad - official law and unofficial law. Official law, easily deduced, underlined either the laws made by the state or sanctioned by it.24 Unofficial law can be classified as law, which is not officially sanctioned but is legitimised in practice through the use of a group of people, be it to work in correlation with the official law or even against it. Chiba stresses that unofficial law may be adopted in official law, such as religious or minority law.25 An example of this can be seen in the British legal system. In 2014 the British Law Society, a leading influencer organisation in the British legal system, concluded that Sharia Law wills can now be created 19 Ibid 20 M. Chiba, Asian Indigenous Law: In Interaction with Received Law (KPI, 1986) 135 21 Shah, n 3 22 M. Chiba, Legal Pluralism: Toward a General Theory Through Japanese Legal Culture (Tokai UP, 1989) 177-180 23 Chiba, n 1 24 Chiba, n 21, 136-39 25 Chiba, n 1

by solicitors within the UK.26 This can be seen as a steady advancement for greater ethic incorporation in legal pluralism, assisting in the study of cultural diversity in legal systems. Legal postulates and legal rules encapsulated the second of the dichotomies. Chiba defined these postulates as a ‘system of values and ideals specifically relevant to both official and unofficial law in founding, justifying and orienting’27 these values. Chiba gives a further analysis by stating that these postulates would consist of established legal ideas such as equity, natural law, sharia law, etc. In addition it would include postulates fundamental to a society’s social structure, such religious precepts and social and cultural traditions (the caste system, traditional dress code, lineal descent and many more). The last aspect of this complex but vital dichotomy is the legal rules that Chiba defined as ‘formal verbal expressions of particular legal regulations to designate specified patterns of behaviour’.28 The last of the three dichotomies, can be seen as very crucial for the study of cultural diversity in legal systems due to the dichotomy drawing a dictation between indigenous and received law.29 One can see that this is important to the study of cultural diversity, in order for legal systems to become more inclusive. This can be seen through Chiba’s definition of the dichotomy which includes the law that has ‘originated in the native culture of a people’30 which was already in existence before contact with the west.31 This is due to the fact that indigenous law in Asia would

26 J Bingham, 'Islamic law is adopted by British legal chiefs' (Telegraph.co.uk, 22 March 2014) accessed 8 April 2019 27 Ibid 28 Ibid 29 Chiba, n 19 30 Ibid 31 Shah, n 3

have already been a combination of multiple influences, an example being Islamic law and the caste system, derived from Hinduism, in Malaysia. Furthered from Chiba’s theory on Legal Pluralism, Menski argues that the elements of the ‘state’, ‘religion/ideology’ and ‘society’ could constitute a structure of the law that is universally applicable. Menski’s work revolves largely around Asian and African legal studies, which one could easily argue are much more ethnically diverse areas of the world. Menski theorises that the non-western form of legal pluralism is built on a subtle balance between these three founding elements.32 Hence, if the state retains too much control the other two elements would come and reign it in.33 This theory, which both Chiba and himself argue, can be most prevalently seen in Japan, South Korea and China, but Menski believes they can be transplanted into the Western ideologies of legal pluralism, making it more accepting towards cultural diversity. In essence Menski builds on Chiba’s argument of the coexistence between modern law, the state, and traditional law, society and religion. This can be seen as valuable towards the study of cultural diversity in legal systems, as in order for a culturally diverse society to exist peaceful and efficiently, legal pluralism must include these varying factors.

The coexistence of modern law with traditional law: Building from the theories established above, it is important to see how legal pluralism has allowed both modern and traditional law to coexist within legal systems, showing the inclusion of cultural diversity. Menski argues in favour for a subtle balance between the state, religion and society, which can be derived

32 W.F. Menski, Comparative Law in a Global Context. The Legal Systems of Asia and Africa (Cambridge UP, 2002) 33 Shan, n 1

as the coexistence of modern and traditional or minor law.34 Although this nonwestern structure may seem simple, in reality it is made up of a complex number of layers, which has allowed for a reasonably peaceful coexistence of varying ethnic groups within a single legal system. As Chiba points out, this structure is established on differing principles of different legal structures. In non-western countries, he argues that the first legal system is religious law: Christian Law, Hindu Law, Islamic law or any other forms of religious law, naturally these are controlled by their own respective administrations but are incorporated into state law.35 This presents a vital argument in how legal pluralism helps the study of cultural diversity, as religion is one of the greatest factors for varying cultures and beliefs, hence if it is effectively included within legal pluralism, a legal system will naturally become more inclusive. One can return back to the UK law’s societies acceptance for sharia law wills, whereby Nicholas Fluck, the society’s president stated that it was “good practice to apply Islamic principles in the British legal system.”36 It is then argued that another layer leading to this coexistence is the varying forms of indigenous law among groups of people. Chiba notes that this is usually authorised by state law and includes, as mentioned earlier, kinship law, tribal law and various others. The last of these layers is the existence of transplanted foreign law, not western law, but foreign such as socialist law.37 Hence, it can be seen that the creation of non-western legal pluralism is a 34 Minor law can be seen as the culmination of multiple factors. This includes the law of local governments and autonomous bodies. It is also referred to as “indigenous law” which in a modern society would include authorities such as churches, universities and trade unions. In addition minor law includes organisations of semi autonomous fields such as tribes, kinship groups and more. In accordance with Chiba’s dichotomies, it can be argued that minor law encapsulates his third dichotomy of the law originated in the native culture of the people. 35 Chiba, n 1 36 Bingham, n 24 37 Chiba, n 1

conglomeration of these various legal systems, which was moulded by the people concerned.38 However, the initial argument of legal pluralism being the coexistence between modern and traditional law can be seen as false due to the complexity of the system. An example of this complexity can be seen within Malaysia, which has maintained its unique structure of legal pluralism that is built up of mainly modern law and Islamic law. Malaysia itself is an interesting example as it can be argued to be one of the most culturally diverse countries in Asia - “Asia’s melting pot”39 - with four official languages: Bahasa Malay, Tamil, Mandarin and English.40 Therefore, although Islam is the most dominant religion, Hindu law and Buddhism law , although theoretically considered as minor law, they are still very relevant factors in Malaysia’s legal system and cultural diversity. Moreover, through British colonialism, Malaysia’s state legal system was originally based on British values41 but has since transformed, constructing a unique for of legal pluralism with modern law and Islamic law in addition to other indigenous and transplanted laws. This concept can be seen to be present within a variation of other non-western legal systems, such as Pakistan, Afghanistan and Bangladesh, adapting to their own uniqueness. It is interesting to note how the development of legal pluralism, arguably, seems to be more sophisticated in non-western societies. Why is this so? It can be argued this may be the case due to greater acceptance and tolerance of cultural diversity within non-western societies. This may be due to the aspect that there is less of a stigma that one culture is better than another.42 This issue will be discussed further when analysing whether western 38 Ibid 39 G. Costelle, Religious and Ethnic Pluralism in Malaysia (edn. 4, LINKÖPING UP, 2006) 40 Ibid 41 Ibid 42 G. F. Bell, ‘Multiculturalism in Law is Legal Pluralism - Lessons from Indonesia, Singapore and Canada’ [2006] Singapore Journal of Legal Studies 315-330

legal systems, such as the UK, are attempting to adopt a more inclusive version of legal pluralism. Nevertheless, it can be noted that legal pluralism, much like cultural diversity, is not a simple concept, but one that is complex and must evolve with its circumstances. It links back to the study of cultural diversity as it can be derived that legal pluralism isn’t a singular ridged concept, but one that is flexible and adaptable to the diversity of a society, but only if that society is accepting in itself. In essence both Chiba and Menski outline that legal pluralism strives with a balance between the varying law founding elements.43 Chiba argues that the success of foreign transplanted law coexisting harmoniously with local cultural identity is based on the basic legal postulate which enables a people to maintain their cultural identity.44 He classifies it as the “identity postulate of indigenous law.” 45 It is defined as an “attribute which is indispensable to every system of the law which wants to remain culturally independent”46 as it is what “guides people in choosing how to reformulate indigenous law and transplanted foreign law in order to maintain their cultural identity.”47 Chiba sees this as vital as it allows a person under legal pluralism to not only be a “passive recipient of legal regulation but also an active agent for the law by his/her choice of an alternative legal rule among the plural.” 48<...