Legal pluralism is the existence of multiple

legal system The contemporary national legal systems are generally based on one of four basic systems: civil law, common law, statutory law, religious law or combinations of these. However, the legal system of each country is shaped by its unique history an ...

s within one society and/or geographical area. Plural legal systems are particularly prevalent in former

colonies In modern parlance, a colony is a territory subject to a form of foreign rule. Though dominated by the foreign colonizers, colonies remain separate from the administration of the original country of the colonizers, the '' metropolitan state'' ...

, where the law of a former colonial authority may exist alongside more traditional legal systems (

customary law A legal custom is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law". Customary law (also, consuetudina ...

). In postcolonial societies a recognition of pluralism may be viewed as a roadblock to nation-building and development. Anthropologists view legal pluralism in the light of historical struggles over sovereignty, nationhood and legitimacy.

History

When the systems developed, the idea was that certain issues (such as commercial transactions) would be covered by colonial law, and other issues ( family and marriage) would be covered by traditional law. Over time, those distinctions tended to break down, and individuals would choose to bring their legal claims under the system that they thought would offer them the best advantage.

Current practice

Legal pluralism also occurs when different laws govern different groups within a country. For example, in

India India, officially the Republic of India (Hindi: ), is a country in South Asia. It is the seventh-largest country by area, the second-most populous country, and the most populous democracy in the world. Bounded by the Indian Ocean on the so ...

and

Tanzania Tanzania (; ), officially the United Republic of Tanzania ( sw, Jamhuri ya Muungano wa Tanzania), is a country in East Africa within the African Great Lakes region. It borders Uganda to the north; Kenya to the northeast; Comoro Islands and ...

, there are special Islamic courts that address concerns in Muslim communities by following

Islamic law Sharia (; ar, شريعة, sharīʿa ) is a body of religious law that forms a part of the Islamic tradition. It is derived from the religious precepts of Islam and is based on the sacred scriptures of Islam, particularly the Quran and the ...

principles. Secular courts deal with the issues of other communities. Since modern Western legal systems can also be pluralistic, it is misleading to discuss legal pluralism only in relation to non-Western legal systems. Legal pluralism may even be found in settings that might initially appear legally homogenous. For example, there are dual ideologies of law within courthouses in the US, as the formal ideology of law as it is written exists alongside the informal ideology of law as it is used. The discussion on the internal and external plurality of legal systems is called

sociology of law The sociology of law (legal sociology, or law and society) is often described as a sub-discipline of sociology or an interdisciplinary approach within legal studies. Some see sociology of law as belonging "necessarily" to the field of sociology, ...

. Sources of Islamic law include the

Koran The Quran (, ; Standard Arabic: , Quranic Arabic: , , 'the recitation'), also romanized Qur'an or Koran, is the central religious text of Islam, believed by Muslims to be a revelation from God. It is organized in 114 chapters (pl.: , sing.: ...

Sunnah In Islam, , also spelled ( ar, سنة), are the traditions and practices of the Islamic prophet Muhammad that constitute a model for Muslims to follow. The sunnah is what all the Muslims of Muhammad's time evidently saw and followed and passed ...

and

Ijma ''Ijmāʿ'' ( ar, إجماع , " consensus") is an Arabic term referring to the consensus or agreement of the Islamic community on a point of Islamic law. Sunni Muslims regard ''ijmā as one of the secondary sources of Sharia law, after the Qur ...

, but most modern Western nation-states take the basis of their legal system from the Christian superpowers of old (Britain, France etc.). That is also why moral laws found in the

Bible The Bible (from Koine Greek , , 'the books') is a collection of religious texts or scriptures that are held to be sacred in Christianity, Judaism, Samaritanism, and many other religions. The Bible is an anthologya compilation of texts of a ...

have actually been made full-fledged laws, with the initial

grundnorm Basic norm (german: Grundnorm) is a concept in the '' Pure Theory of Law'' created by Hans Kelsen, a jurist and legal philosopher. Kelsen used this word to denote the basic norm, order, or rule that forms an underlying basis for a legal system. ...

set far back in

legal history Legal history or the history of law is the study of how law has evolved and why it has changed. Legal history is closely connected to the development of civilisations and operates in the wider context of social history. Certain jurists and histo ...

, hence fulfilling the priority of both the positivists and the naturalists. The Oriental net

Hamed Kazemzadeh Hamid refers to two different but related Arabic given names, both of which come from the Arabic triconsonantal root of Ḥ-M-D (ِِح-م-د): # (Arabic: حَامِد ''ḥāmid'') also spelled Haamed, Hamid or Hamed, and in Turkish Hamit; it ...

believes that in spite of the levelling off of many present differences under the impact of science, technology, and increased intercommunication in

Legal Pluralism Legal pluralism is the existence of multiple legal systems within one society and/or geographical area. Plural legal systems are particularly prevalent in former colonies, where the law of a former colonial authority may exist alongside more tradi ...

, we cannot in any reasonably near future envisage any substantial lessening of the differences in our basic value systems, either philosophical or cultural. Legal pluralism also exists to an extent in societies where the legal systems of the

indigenous population Indigenous peoples are culturally distinct ethnic groups whose members are directly descended from the earliest known inhabitants of a particular geographic region and, to some extent, maintain the language and culture of those original people ...

have been given some recognition. In

Australia Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...

, for example, the ''Mabo'' decision gave recognition to native title and thus elements of traditional Aboriginal law. Elements of traditional aboriginal

criminal law Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law i ...

have also been recognised, especially in sentencing. That has, in effect, set up two parallel sentencing systems. Another example is the

Philippines The Philippines (; fil, Pilipinas, links=no), officially the Republic of the Philippines ( fil, Republika ng Pilipinas, links=no), * bik, Republika kan Filipinas * ceb, Republika sa Pilipinas * cbk, República de Filipinas * hil, Republ ...

whose customary ways of indigenous peoples in the

Cordilleras A cordillera is an extensive chain and/or network system of mountain ranges, such as those in the west coast of the Americas. The term is borrowed from Spanish, where the word comes from , a diminutive of ('rope'). The term is most commonly us ...

are recognized by the Philippine government and in

Kalinga Kalinga may refer to: Geography, linguistics and/or ethnology * Kalinga (historical region), a historical region of India ** Kalinga (Mahabharata), an apocryphal kingdom mentioned in classical Indian literature ** Kalinga script, an ancient writin ...

Bodong Bodong refers to the peace pact or treaty, used by the Kalinga people in Kalinga Province, northern Philippines. These peace rites are usually accompanied by Kalinga songs such as the ''ading'', ''wasani'' and the ''dandanag''. It is a unique jud ...

is the means used by the people to settle disputes: since it had been very effective for them, it is still widely practiced. There is some concern that traditional legal systems and Muslim legal systems fail to promote

women's rights Women's rights are the rights and entitlements claimed for women and girls worldwide. They formed the basis for the women's rights movement in the 19th century and the feminist movements during the 20th and 21st centuries. In some countries, ...

. As a consequence, members of the Committee on the Elimination of Discrimination against Women (CEDAW) have called for a unification of legal systems within countries.

In the Theory of Law

legal anthropology Legal anthropology, also known as the anthropology of laws, is a sub-discipline of anthropology follows inter diciplinary approach which specializes in "the cross-cultural study of social ordering". The questions that Legal Anthropologists seek ...

and

sociology Sociology is a social science that focuses on society, human social behavior, patterns of Interpersonal ties, social relationships, social interaction, and aspects of culture associated with everyday life. It uses various methods of Empirical ...

, following research that noted that much social interaction is determined by rules outside of the law and that several such "legal orders" could exist in one country, John Griffiths, made a strong argument for the study of these social systems of rules and how they interact with the law itself, which came to be known as legal pluralism. This concept of legal pluralism where the law is seen as one of many legal orders has been criticized. Roberts argued that the concept of law was intrinsically linked to the notion of the

state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States * ''Our S ...

so these legal orders should not be considered similar to law. On the other hand, Tamanaha and Griffiths have argued that law should only be studied as a particular form of social order together with other rules that govern social systems, abandoning the concept of law as something worth studying.

References

External links

* McGill Centre for Human Rights and Legal Pluralism, Faculty of La

{{DEFAULTSORT:Legal Pluralism Pluralistic legal systems, Multiculturalism Theories of law

History

Current practice

In the Theory of Law

See also

References

Further reading

External links