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Summary WLS sv Legal Pluralism boek+sheets
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Legal Pluralism• Early notions of legal pluralism
• Legal pluralism in HLA Hart’s Concept of Law
• Postmodern theories of legal pluralism
• Examples of legal pluralism in this course
• Early notions of legal pluralism
Colonial context
Twining suggests that pluralism goes much deeper, so that ‘to understand law
and legal ordering, the study of norms is almost never enough. One also has to
take account of values, facts, meanings, processes, structures, power relations,
personnel, and technologies. And then there is the matter of multiple standpoints
and perspectives’. Lawyers have problems with handling legal pluralism and is
marginalised by them and viewed with scepticism in legal discourse. To take
account of interlegality, pluralism needs to be conceived as ‘a universal
phenomenon covering both Western and non-Western societies and, at the same
time, appearing in not only the dual structure of state law and minor customary
law but also the triple of customary law, national law and international law’
(Chiba).
As a theme, legal pluralism is ancient and found especially among people ‘who
live ecological lives by being chthonic’, which means that they live in or in close
harmony with the earth. Jeremy Bentham adopted the thesis that law is not to be
judged as good or bad in the abstract, but only in relation to the manners,
customs and physical environment of the particular people.
Sir Henry Maine (2.2)
The historical school was led by Maine and relied on a romantic, ‘mystic sence of
unity and organic growth in human affairs’. Maine is considered significant as the
father of comparative law, as well as of legal anthropology. Maine opposed
natural law theories, but did not follow mystical adherence to a folk spirit
(Volksgeist) as developed by Savigny. His major work was the basic distinction of
‘static’ and ‘progressive societies’, as well as a multi-stage theory of legal
development, man believed that the law was God-given and channelled through
earthly rulers; then law became identified with custom; finally, law acquired a
separate identity. In the course of this long evolution, law passed from status
to contract. Maine saw it as a characteristic of ‘progressive’ societies that they
went beyond the older methods of law-making and employed 3 specific methods:
fictions, equity and formal legislation.
Hoebel (neo-evolutionary)
Hoebel developed the concept of ‘trend of law’, which implies a pattern of
transition from the simple to the more complex. This is so since simpler
societies needed less law than more complex societies.
Karl von Savigny was a reaction to that and was critical of Roman law influence
and opposed the classical natural law approach because, to him, law was
inevitably part of the culture of a people. He developed the concept of a folk
spirit (Volksgeist), which had to be viewed in its particular historical context. He
saw law as the manifestation of the common consciousness. He echoed
Montesquieu by saying that such views of law and law making (laws that
violated local customary norms) inevitably forced lawyers to study non-legal
subjects as well, including Folklore.
, Eugen Ehrlich’s Living Law (2.3)
Eugen Ehrlich discussed legal pluralism in detail, without using the term explicitly.
He proposed quite radically that ‘lawyers’ law ‘exists side by side with other
factors in society which may heavily influence or even in practice override it’. He
said that the living law of subgroups, as well as the official law had to be taken
into account. He saw law as derived from social facts and more dependent on
social compulsions than state authority, recognising that the state possessed
certain characteristic means of compulsion. For him, law can only be understood
from a sociological perspective. Living law is thus never just custom or the law as
officially laid down by the state, but the law as lived and applied by people in
different life situations.
His analyses highlights an inevitable gap between the official law and
actual practices, so that living law is not simply the law as practised,
but an amalgam of the official law and of people’s values.
There have been fierce criticisms of Ehrlich’s approach. First it has been said that
his theory does not attach sufficient weight to the way in which formal law itself
influences and reforms the practices of society. The second one questions
Ehrlich’s approach to custom, alleging that he confused the position of custom as
a source of law with custom as a type of law. The main point of Ehrlich’s
theoretical approach remains that, even in the presence of state law, people’s
norms would not automatically become defunct and they would modify the law
made by the law-giver into living law. A further criticism involves a general
challenge to legal pluralism and seeks to defend the typical lawyers’ egocentric
approach: he fails to offer any sharp distinction between the legal norm and other
social norms.
H.L.A. Hart’s Concept of law (2.4)
To Hart, legal analysis involved an intricate combination of rule-focused enquirt,
combined with an understanding of how the social players in any given group
perceive the relevant rule systems and how they negotiate and apply it. This is
called the internal aspect of rules.
Hart assumes that primitive societies are pre-legal because they do not have
enough formal legal rules. And it is their deviation (in relation to the Western rule-
fixated thought) in these respects from the standard caser which makes their
classification appear questionable. Such an assumed primitive society has no
means of developing elaborate rules from within.
Hart also proposed interaction between primary and secondary rules, what
reinforces Eurocentric positivism. Under primary rules, human beings are
required to do or abstain from certain actions, whether they wish to or not. The
secondary rules provide that human beings may by doing or saying certain things
introduce new rules of the primary time, or in various ways determine their
incidence of control their operations. (rules of the 1 st type impose duties, the 2nd
type confer powers, public or private). He explains that there must be some
primary rules in any society, because otherwise there would be total chaos and
such a society could not survive. However, there still is a need for secondary
rules, because simple primary rules are unable to cope with crises and the
increasing complexity of a larger society.
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