(2002) JLP 47: 37-82
WHO’S AFRAID OF LEGAL PLURALISM?
Franz von Benda-Beckmann
In the roughly thirty years in which the concept legal pluralism has been used in legal and social scientific writings on complex normative systems, the concept has become a subject of emotionally loaded debates. Though originally introduced with modest ambition as a 'sensitizing' concept, drawing attention to the probability and frequent existence of parallel or duplicatory legal regulations of the same domain of social action or organisation within one political organisation, the discussion is increasingly dominated by the exchange of conceptual a priori’s and stereotypes as well as by clichés over those who use them. Rather than looking at the heuristic value of the concept in use, for describing, analysing and evaluating empirical complex normative situations, the conceptual struggles tends to create two camps, effacing the many differences in assumptions and approaches to law in society. Starting with Tamanaha’s paper on the folly of legal pluralism (1993), one can even observe the emergence of a bogeyman called ‘the legal pluralists’ or a ‘legal pluralist movement’ (associated with the Commission on Folk Law and Legal Pluralism and the Journal of Legal Pluralism) devoted to some romantic but ill-conceived enterprise of equalizing normative orders that are quite fundamentally different, by calling normative orders not recognized as law by the state, nevertheless ‘law’. Such concept of law, it is argued, obscures the fundamental differences in form, structure and sanctioning potential or effective sanctioning between state law and other normative orders. Others in contrast emphasise that a construction of the term law as a basic concept for historical and cross-cultural comparison nearly automatically leads to a concept that can encompass a wide range of variation, and in which law made or recognized by state institutions is one, but not the only empirical manifestation of law. Reserving the concept of law to state law only, in their eyes comes close to an essentialist and ahistorical conception of ‘law’. This paper analyses the reasons given for and against the concept legal pluralism and presents the author’s views on its value and limitation.