This is not a problem of the past. In the former colonies, most courts still apply customary law to many disputes involving rural populations. Parts of customary law are thus incorporated into State law. This is a case of constructed legal pluralism. However, the application of customary law concerns only substantive rules; State court procedures are always designed by the state. Thus, « traditional » substantive law is applied in proceedings under national law, which has made significant changes to the substantive rules. In fact, two types of customary law coexist: local law, as developed and applied by the local population itself; and « customary law » or « traditional law » as applied by State institutions. These two legal forms are not completely independent, but are complex in relation to each other and to State law. Dutch authors who wrote about colonial law, such as Van Vollenhoven, were well aware of what was happening (Holleman 1981).
The term adat law was developed precisely to indicate the difference with adat – the Malay term for local customs in the broadest sense of the word, way of life. Today, the term Adat law is generally used for both state-defined and local versions of common law. Early descriptions of plural legal systems examined each individually, but more recent work focuses on how plural systems shape each other. Thus, one legal system may offer the right to challenge the decisions of another, or a litigant may choose between several competing systems. Plural legal systems generally differ in their power, so the more powerful has the ability to surpass the actions of the less powerful. In colonial situations, colonial authority often established one legal system for the subject and another for the colonial authorities (Moore 1986, Merry 2000). Local social groups such as schools, communities, businesses, and even gangs have their own right-like systems of order, but they operate within the framework of nation-state law. The term « interlegality » has been used to describe the interactions between several legal systems. 41. See Merry, S.E., « Anthropology, Law, and Transitional Processes » (1992) 21 Annual Review of Anthropology 357 at 358CrossRefGoogle Scholar, and de Sousa Santos, B., « Law: A Map of Misreading. Towards a Postmodern Conception of Law » (1987) 14 Journal of Law and Society 279 at 298CrossRefGoogle Scholar.
In an attempt to deliver a postmodern reconception of law, de Sousa Santos argues that legal pluralism plays a crucial role. However, the legal pluralism to which he refers is not the traditional version of legal anthropologists, « in which legal systems are understood as distinct entities coexisting in the same political space, but the conception of different legal spaces that overlap, permeate and blend in our minds as well as in our actions, on the occasion of qualitative leaps or profound crises in our life courses as well as in the boring Daily meeting routine without incident. Life » [emphasis added]. Since modern Western legal systems can also be pluralistic[2], it is misleading to discuss legal pluralism only in relation to non-Western legal systems. Legal pluralism can even be found in contexts that may seem legally homogeneous at first. For example, there is a dual legal ideology in courthouses in the United States because the formal ideology of law, as written, coexists with the informal ideology of law as it is used. [3] The discussion of the internal and external plurality of legal systems is called the sociology of law. 43.
There are many ways of understanding « critical pluralism » in the legal concept. Although the image presented here was inspired by a hermeneutic and narrative analysis, the intention was not to limit the scope of the proposed agenda. The necessary preconditions for critical legal pluralism, as described in the following paragraphs, are broad enough to cover many legal images, of which ours is just one example. The use of the indefinite article « a » in the title of this essay is intended to point out the multiple possibilities within the framework of critical legal pluralism. Alternative and opposing conceptions of critical legal pluralism are present in the authors` earlier works. See, for example, « The Creative Self, » note *; « A Hermeneutic Turn Through Narrative, » notes *; « Plurality of persons and legal pluralism », note *; « Critical Legal Pluralism, » note *. 21. It is not new that deep conflicts over social meaning – authenticity, solidarity, freedom, equality, democracy – find expression in conflicts over human symbolic objects. What particularly characterizes legal battles, however, is the way in which these disputes over meaning have been framed by the litigants as matters of definition. Within the legal community, binding definitions have long been disguised as an irrefutable description, in the age-old effort to shift the burden from the qualifying adjective onto the adversary.
But these expressions of the conflict of definitions must be recognized for what they are: rhetorical strategies. A group of protagonists identifies the word law exclusively with the explicit product of the political state, forcing opponents to use the qualifying adjectives (non-state, informal, soft, habitual) when discussing the type of law they are interested in. The other group of protagonists uses the word law in a broader sense, forcing opponents to use the qualifying adjectives (state, formal, hard, promulgated) when discussing the type of law they are interested in. The important thing is not to « prove » the « empirical truth » of either definition—a problematic exercise in itself based on second-order definitions—but rather to recognize the ideology and goals behind the chosen perspective. On this general problem, see Without the Law, supra note 15, pp. 3-4. Institutional recognition of a customary or religious legal system has occurred when the institutions of that system have been incorporated into a State legal system, for example when chiefs have become administrative officials or judges of the State. This often occurred in the British colonies, in accordance with the policy of indirect government, which sought to govern the colonies by indigenous forms of government. With the abandonment of politics from the 1940s onwards, this recognition lost its importance, but it continued in a limited form. In other colonies, it was adopted as a concession to local opinion as well as for practical reasons; It has continued there since independence. 2. See, for example, Gilissen, J., « Introduction à l`étude comparée du pluralisme juridique » in Gilissen, J., ed., Le Pluralisme juridique, Brussels, University of Brussels, 1971, 7Google Scholar; Hooker, M.
B., Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws (Oxford: Oxford University Press, 1975)Google Scholar. Customary and religious laws were not and could not be « incorporated » into State law without radical changes in their nature and content. The State has always excluded parts of customary law from admission, such as those providing for slavery, which ran counter to the fundamental values of the State. Moreover, acceptable elements of customary and religious law systems cannot be taken into account without reformulation. The institution of chieftaincy, for example, is transformed when its authority ceases to derive from respect for tradition and community identity and is based on the threat of coercion by State institutions. The forms of coercion of State institutions, such as the threat of imprisonment that supports a judicial decision, are different from the social pressure traditionally exerted on the parties to the conflict to accept a compromise. Consequently, normative recognition has generally led to the coercion of conduct of a different nature from that which would have occurred otherwise. After all, the staff of state institutions are often unfamiliar with customary or religious law and have « recognized » standards that differ from those observed in society. Thus, State institutions are creating new « official », « judicial » or « legal » customary rights norms, which differ from the customary « people », « people`s », « indigenous » or « practiced » rights that have continued to be respected outside State administrations.
Some legal historians view customary law of lawyers as an « invention » that has no significant connection to pre-existing social norms (e.g., Chanock, 1985), although others consider this extreme conclusion unrealistic (e.g., Woodman, 1985). The recognition of the importance of non-state legal forms has led socio-legal theorists to rethink their thinking on the relationship between law and society. The suggestion that the law of the State and its institutions for the administration of justice are merely a form of social control has been an essential feature of legal pluralism since the foundations of legal theory. However, the pluralistic legal tradition has focused on the character, source and hierarchical place of non-State normative orders in relation to State law. Until the mid-1970s, much of their argument explored the relationship between Indigenous tribal customs and European colonial law (Pospisil, 1971). This tradition regarded indigenous orders as autonomous, independent, but subordinate to colonial law. By the mid-1980s, the focus had shifted to non-colonial societies, but continued to be concerned with the hierarchical balance of power between dominant and subordinate legal forms. Therefore, many critical theorists view « informal judicial institutions » as a subordinate normative order and examine how they fulfill the ideological function of blurring state power so that it appears as a benign part of the social fabric.
