Problematic legal pluralism: causes and some potential ‘cures’

Abstract

The tools of analytical positivism and economic analysis are applied to the phenomenon of legal pluralism. An analytical framework is developed to ascertain when legal pluralism is problematic in the control of wrongdoing. It is demonstrated that there are three specific cases: rivalrous compliance, sanctions for wrong behaviour that are deemed to be wrongs themselves, and the uncoordinated sanctioning of common wrongs. Then there is a discussion of the consequences and some approaches that can be used to ameliorate each case that has been identified. It is hoped that this framework will be used to guide future practical and theoretical discussions on legal pluralism and its potential problems.

Keywords:

• legal pluralism
• law and economics
• legal dissonance
• norms
• criminal law
• religious law

Acknowledgements

I would like to thank Omri Ben-Shahar, Chiara Berneri, John Braithwaite, Roman Cholij, David Howarth, Alban McCoy, Richard Nobles, Eric Posner, Tim Swanson, William Twining, Tim Willems, Gordon Woodman, three anonymous referees and participants at the Australian National University RegNet seminar series and at the United Kingdom Socio-Legal Studies Conference for useful comments and suggestions on earlier drafts, with the usual disclaimer. I would also like to thank professor Megan Richardson for her generosity in hosting me as a visiting scholar at the Melbourne Law School where the beginnings of this article were written.

Notes

1. For instance, see Tamahaha, Sage, and Woolcock (2012) that was the product of a World Bank initiative aimed at ascertaining the usefulness of legal pluralism for their researchers practitioners.

2. This explanation is necessary as it remains, at least to some extent, a contested term and concept. This is apparent from discussions with those who use the term. It is also apparent in the literature. Some of the definitions include: ‘legal systems, networks or orders coexisting in the same geographical space’(Twining 2000, 83); ‘the co-existence of multiple legal orders and multiple systems or bodies of rules’ (Twining 2000, 224); ‘different legal mechanisms applicable to the same situation’(Vanderlinden 1971 c.f. Griffiths 1986, 14); ‘different rules for identical situations’(Vanderlinden 1971 c.f. Griffiths 1986, 14); ‘multiple uncoordinated, coexisting or overlapping bodies of law’(Tamanaha 2008, 375); ‘a context in which multiple legal forms coexist’ (Tamanaha 2012, 34); ‘a situation in which two or more legal systems coexist in the same social field’ Merry (1998, 870);’the situation in which a population observes more than one law’ Woodman (2012, 129); ‘[w]henever the group subject to a particular law contains members who are also subject to another law’ Woodman (1999, 14); ‘that state of affairs, for any social field, in which behaviour pursuant to more than one legal order occurs’ Griffiths (1986, 2); and ‘semi-autonomous social fields’ (Moore 1978 c.f. Griffiths 1986, 36). Despite the plurality of definitions, which can lead to very different analytical methods, there is an unmistakable thread that describes a society subject to more than one legal order.

3. Woodman (1999, 10) tells us that deep legal pluralism acknowledges the fact that different legal orders have ‘separate and distinct sources of content and legitimacy.’

4. This is contrasted with the concept of state legal pluralism which refers to a situation where the state may incorporate laws or legal practices from outside into its own and can be described as a ‘technique of governance’ (Sezgin 2004, 101).

5. Tamanaha (2008) argues that just as the state was increasing its market share at the expense of religious, trade, and customary orders in Europe, and thus reducing the degree of legal pluralism at home, it was increasing it elsewhere through colonisation. He goes on to suggest that the clash of differing legal regimes in Europe was dealt with by the gradual assertion of state law. He argues over time religious and customary legal regimes lost their former equal standing with state law (due to state takeover) and became norms, still socially influential, but carrying a different status than the state law.

6. This is drawn primarily from the work of Twining (2004, 2009, 2012) who provides insight into separating legal institutions from other social institutions, particularly at their borders. This ordering job concerns both the patterning and control functions of law. Primarily, this social ordering job enables people to coordinate their actions within a group and between groups and provide for basic necessities such as sustenance and security. While some of this ordering job relates to patterning, such as deciding on what side of the road to drive on, it also relates to social control, such as dealing with deviance and opportunistic behaviour (wrongs). In the area of criminal law, this job relates to both the patterning and controlling of sub-parts of the ordering of relations function; social control by sanctioning (punishing) certain behaviour and providing a patterned method for individuals to respond (for example, seeking assistance from the state by going to the police when wronged). As Twining fully acknowledges (2009), it would be naive to suggest that the only job of law is to order relations between persons within a society. Clearly, law serves many purposes, albeit to differing degrees in different times and in different societies. Law may be developed primarily as an instrument for wealth maximisation, repression, and social control. It may primarily serve elites for their own ends in efforts to generate and maintain power and wealth. It may serve social reformers (and conservatives) in efforts to change (maintain) society's views of what should be rewarded and what should be sanctioned. However, it also seems difficult to deny that a basic job of law is to order relations between persons within a society.

7. A legal production function has many similarities to a legal system. See Nobles and Schiff (2012) why apply systems theory to study legal pluralism. Their work builds heavily on the seminal work of Luhmann (2004).

8. Whether someone accepts that non-state groupings can create and enforce ‘law’ depends on one's definition of law – an old chestnut that has vexed Anglo-American jurisprudence for some time. It is acknowledged that the rules of most non-state groupings that fit within the following definitions would not pass Hart's (1961) conception of law, but some might.

9. It is also suggested that it provides a workable answer to Merry's (1998, 878) pertinent question: ‘Where do we stop speaking of law and find ourselves simply describing social life?’

10. Note that the definition above explicitly rules out much of the literature concerning conflict of laws. While the conflict of laws literature acknowledges that law can have multiple sources, it is almost always assumed that someone (usually a judge or legislator) ultimately decides what law is applied, rather than the legal orders asserting their rules (See Whincop 1999; Solimine 2002). The definition does allow for federalism if both legal orders claim independent sources of legitimacy, – in this sense the framework can also be applied to determining problematic interactions between federal/state enforcement.

11. See Larcom (2013b) who finds a strong relationship between current state enforcement, current crime rates and pre-colonial institutions.

12. In Western Europe, the Muslim population was estimated at 18 million people 2010 and is expected to rise to 30 million in 2030 (or 7.1% of the population). The Muslim population of the United States was estimated at 2.6 million in 2010 and is expected to rise to 6.2 million in 2030 (or 1.7% of the population). (Pew Research Centre 2011). Shar (2013) provides an account of Islamic tribunals operating in the UK and their legal authority. For a discussion on some of the specific problems brought about by large scale migration of religious minorities to the West and the emergence of ‘illiberal liberalism,’ see Adamson, Triadafilopoulos, and Zolberg (2011) and Nussbaum (1999).

13. See Boyer (2013) and Venetis (2011) for an overview of the scope and intention of this legislation. While much of the legislation does not specifically refer to Shari’a law (as it did in Oklahoma's case), there seems to be little doubt over the target of this recent wave of legislative activity – to limit the practice of Shari’a law in the United States and to prevent the consideration of Islamic jurisprudence in court judgements.

14. There remains some uncertainty over priestly privilege in the UK. See Ormerod and Hooper (2014) for commentary on Confidential but Non-privileged Relationships in Blackstone's Criminal Practice.

15. For an overview of Islamic law relating to criminal matters, see Badar (2011). Some Islamic scholars consider that the specified sanctions for wrongdoing, including those for hudud wrongs, can be substituted, and usually are in most Islamic states, with less severe sanctions (Peters 2005). Importantly Jackson (2006, 168–169) suggests that Muslim jurists have recognised for many centuries that ‘beyond the bright red boundary surrounding the family no one but the State had the right to impose legal sanctions.’

16. See Tamanaha (2008) and Morse and Woodman (1988) for a discussion on the various stances taken by the state in relation to non-state law.

17. See Hirshleifer (1982) likens the evolution of different institutions as a struggle for existence and likens it to Rome and Carthage's duel for survival. For the evolution of efficient law enforcement, see Shavell (1993). Further references to this large literature are made below.

18. See McAdams and Rasmusen (2007) for an overview of the Norms and Law literature. Authors, such as Shavell (2002), have modelled norms primarily as complements to the state legal order and analysed the optimal mix of such institutions. Others, including Posner (1997), McMillan and Woodruff (2000), and Kaplow and Shavell (2007). While not an economist, it is noteworthy that Black's (2010) seminal analysis made the case much earlier that informal sanctions can substitute for state sanctions (and vice versa) and that many crimes committed are in effect non-state punishments for perceived wrongdoing.

19. See Grossman (1995) on the interactions of the state and organised crime. In his model, both the state and the mafia provide public services in order to maximise taxation revenue. He assumes that competition between these two organisations can lead to efficiencies and an increase in social welfare.

20. Modelling legal pluralism in this manner is closely aligned with Moore's (1973) conception of the phenomenon as semi-autonomous social fields interacting with one another. McAfee, Mialon, and Mialon (2008) have considered the importance of sequencing in relation to these interactions while Briggs, Huryn, and Mc Bride (1996) and Coffee (1986) have also considered the aggregation of public and private enforcement efforts and jointly determined level of deterrence. Licht (2008) has also considered interactions between the state and groups of norms.

21. Benabou and Tirole (2011) who model how as state incentives increase they crowd (internal) motivations; and Cooter (1997a) and Shavell (2002) both look at optimal state sanctions with the presence of norms and suggest that state sanctions could be decreased to account for the existence of social or internalised sanctions; conversely, Galanter and Luban (1992) argue there is nothing unusual in being sanctioned heavily by both state and non-state institutions, while Garoupa and Gomez-Pomar (2004) consider it optimal. Benabou and Tirole (2011) build on the crowding-out literature of Akerlof and Dickens (1982) and Frey and Jegen (2001) who look at the consequences of state activity through affecting internal motivations. There is also some literature on overlapping jurisdictions, and the negative interaction effects (see Hutchinson and Kennedy 2008; Langpap and Shimshack 2010), or, Kovacic (2001) in the context of antitrust enforcement externalities.

22. See Cooter (1997a, 1997b, 1998, 2000) who argues that law often evolves out of social norms leading to efficiency gains. Also, see Segal and Whinston (2006), Garoupa (1997, 2003), and Polinsky (1980).

23. Knight (1992) suggests that for a new state law to displace conflicting norms, expectations among the population must change through expressive information and the use of state sanctions. He suggests that without a proper enforcement mechanism, there is unlikely to be a move from the old equilibrium to a new state-based equilibrium. Kahan (2000, 607) who provides a basic model to analyse state efforts to change what he calls ‘sticky norms’ and suggests that ‘gentle nudges’ can be more effective than ‘hard shoves’ as agents of the state.

24. The fact that norms and non-state rules can persist for long periods despite being punished by the state has also been highlighted by Bicchieri (2006), Greif (2006), Aoki (2001), and Basu (2000).

25. Carbonara, Parisi, and Von Wangenheim (2012) have also provided a model suggesting that if the state chooses to punish activities that are considered socially acceptable, it may actually increase its practice through protest activity.

26. More formally, this can be written as: ; ; and

27. Legally wrong behaviour is ‘punishable’ in the sense that the wrongdoer is subject to legal punishment; however, the actual punishment may not be enforced: due to insufficient capacity of the legal order (e.g. the wrongdoer may be unidentified or out of reach of the legal order's agents) or due to a lack of will to punish the wrongdoer (e.g. due to clemency, mercy, or amnesty provisions that are found in almost all legal orders). Similarly, a reward good behaviour may not be rewarded.

28. Such behaviour is referred to supererogation in moral philosophy.

29. More formally, this can be written as: ; ; and For this assumption to hold, a degree of specificity is required by the legal order in defining , and ; in terms of the physical act itself and the circumstances that surround it (e.g. consequences, intention and defences). In reality, this is difficult, and despite tonnes of ink in some cases, most legal orders have some degree of ambiguity concerning the legal consequences of certain acts and omissions.

30. See the seminal works of Bentham (1843), Austin (1879), and Hart (1961).

31. Indeed, even if there was the same number of moral frameworks as legal orders in a society which could allow for each legal order to mirror each moral framework, however, there would still be a disconnection between different legal orders and different moral frameworks.

32. The most obvious example is lying. While lying may be considered morally wrong, it is unlikely to be legally wrong per se. Similarly, some morally good behaviours are unlikely to be legally good behaviours.

33. Indeed, traditional definitions of law relate to the ability to inflict suffering on wrongdoers (see Bentham 1843 and Austin 1879). In the process of punishing wrong behaviour, legal orders may offer rewards to secure the punishment of a wrongdoer. As noted by Hart (1961), legal orders can also confer power on individuals to make binding agreements (e.g. marriages and contracts); however, even the violation of these agreements can be seen as a wrong.

34. Note that the first complete version of Bentham's Place and Time was first published in 2011.

35. That is, the behaviour (act or omission) would satisfy the specific requirements deeming it to be a prohibition or imperative (making it a wrong) other than the fact that it is deemed to be a legitimate legal sanction by the legal order for wrong behaviour. The process of converting an otherwise wrong behaviour into a legitimate punishment will vary between legal orders; however, a warrant serves this purpose in a number of formal legal jurisdictions.

36. While it may be more intuitive to consider this problem arising in relation to non-state sanctions that are state wrongs (e.g. a payback killing under customary law in Papua New Guinea), it could also arise in relation to state sanctions that are non-state wrongs (e.g. a state execution deemed wrong by a non-state legal order). Whether a state sanction is considered a wrong by a non-state legal order will largely rest on whether it accepts the legitimacy of the state and its sanctioning process (which is effectively the non-state version of ‘state legal pluralism’). While casual observation suggests this is indeed normally the case, it is not always. For instance, the legitimacy of the state itself may be disputed (e.g. apartheid South Africa); the legitimacy of legal order may be disputed (e.g. Nazi law); the legitimacy of the sanctioning process may be disputed (e.g. due to rampant corruption); or a non-state legal order may consider that a given act is never sanctionable (e.g. the Brethren, Mennonites, Amish and Quakers all refuse to recognise the right of the state to commit homicide (Gudorf 2013). Despite these important exceptions, for reasons of practicality, the discussion is focused on non-state sanctions that are state wrongs.

37. This analysis shows that the potential inefficiencies from multiple enforcement as identified by Landes and Posner (1975) and Kaplow and Shavell (2007) is a subset of a coordination problem associated with common wrongs, which is one of the three potential causes identified here.

38. Also, see Larcom and Swanson (2013) for a detailed study of this particular phenomenon relating to retributive violence and group loyalty in Papua New Guinea.

39. This may be due to internalised views of law (Hart 1961) or the fact that in many developing (and some developed) countries the state is (and sometimes always has been) relatively weak in relation to non-state legal orders. In some (failed) states, non-state legal orders may even have more resources and higher levels of productivity.

40. In relation to the state withdrawing enforcement activity in Europe, two prominent examples are the benefit of clergy rule under English law that existed for many centuries (see Briggs et al. 1996) and the legal arrangements depending on one's religion in (and soon after) the period of Moorish domination of Spain (see Benton 2002).

41. For example, given the gravity of sorcery and adultery under customary law in Papua New Guinea, where homicide was often a legitimate sanction for such behaviour, the colonial administration made both behaviours crimes with considerable prison terms attached (Jinks, Biskup, and Nelson 1973).

42. In analysing the consequences of the state adopting witchcraft as a crime in Cameroon and South Africa, he found evidence that it has entrenched belief in its existence and its power within these societies.

43. This uncertainty seems to arise from the paucity of cases before the courts on this matter over the last two centuries (see Ormerod and Hooper 2014).

44. See Kahan (2000) for a discussion and formal model that takes account of this phenomenon.

45. For instance, Vendetta was practiced in parts of Southern Europe well into the twentieth century and still continues in some pockets (Spierenburg 2012).

46. Indeed, Hassan (2011) notes that it was the Pakistani state's explicit recognition of Shair’a Law in their Criminal Code, that allowed US ‘diplomat’ Ramond Davis to be freed from prison and to leave Pakistan. This is despite him being charged with two counts of murder and the Pakistani state unwilling to recognise his claim for diplomatic immunity.

47. See Larcom (2013a) for an account of this in Bougainville Island where the state has effectively reordered the sanctioning process, allowing customary law to enforce (non-violent) sanctions first, even for gravest of crimes.