What is aCriticalLegal Pluralism?

Abstract

Legal pluralism is a contemporary image of law that has been advanced by sociolegal scholars in response to the dominant monist image of law as derivative of the political state and its progeny. The pluralistic image redirects law and society research toward the myriad normative orders outside the circle of “the Law.” This essay considers the epistemological foundations of both legal pluralism and the legal monist image of law against which its proponents are reacting. It argues that contemporary pluralistic imaginations rest on the same impoverished view of law and its subjects that sustains the traditional claim that law comprises only the processes and institutions emanating from the modern political state. The authors propose an alternative image of law in an effort to redirect the sociolegal studies research agenda.Challenging the traditional social-scientific legal pluralism of reified cultures and communities, the idea of critical legal pluralism presented in this essay rests on the insight that it is knowledge that maintains and creates realities: a critical legal pluralism imagines legal subjects as “law inventing” and not merely “law abiding.” The authors argue that, once the constructive, creative capacities of legal subjects are recognized alongside the plurality of these same subjects, the relationship between laws and selves reveals its complexity. They acknowledge that their approach is only one of many possible critical legal pluralist approaches; but they maintain that any reconception of law within a framework of critical legal pluralism is a form of emancipatory prescription. As definitions of law are revised and rejected, new vistas are opened for sociolegal scholarship.

Reflections on Law in Light of Everyday Life at L’Arche

“…Such an approach challenges one to attend to how individuals themselves negotiate legal pluralism: how do they interpret, ignore or invent rules to live by? (Kleinhans & Macdonald 1997;Macdonald & Sandomierski 2007 home from the concert, but it still raises such questions. Legal pluralism acknowledges that the exercise of power in any context merits the scrutiny of such analysis, while at the same time recognizing that there is not a universal set of abstract, formal legal criteria by which to evaluate such actions.…”

Feminism and the Flat Law Theory

“…For instance, the opposition between monocentric and polycentric law is derived from Nordic scholarship which uses this terminology and which, as Hanne Petersen has illustrated, has a specific relevance to feminist legal thought (Petersen 1997). 7 The opposition between law as singular or monistic and law as plural is commonly found in the legal pluralism literature, where 'pluralism' refers sometimes to multiple systems of law co-existing in the one space (Griffiths 1986), sometimes to multiple concepts of law (Tamanaha 2001) and sometimes to the inherent pluralism of state law (Manderson 1996;Kleinhans and Macdonald 1997;Davies 2006). And of course Foucault's lectures on power and knowledge are the source for the distinction between top-down and decentred forms of power (Foucault 1980, pp.…”

“…Practices and subjects constitute law just as much as institutional and ideational sources (Petersen 1997;Kleinhans and MacDonald 1997;Chiba 1998, p. 239).…”

“…Such a plurality of persons necessarily generate a plurality of legal knowledges (cf. Cover 1983), which are not, however, completely subjective since they originate in shared meanings and common identities (see also Kleinhans and MacDonald 1997;Manderson 1996). From the perspective of vertical law, such meanings are marginal to any truth about law, but this marginality is a consequence of the vertical control over legal meaning: it is legally enforced marginality, not the necessary condition of plural knowledges about law.…”

The (in)visible subject: women's normative strategies in eastern Congo

“…For example, a culturally or socially marginalized group may decide to create a specific space in which distinct norms apply to a sub-group of the community, as is the case for women. As such, we must understand legal pluralism as an amalgam of semiautonomous social fields (SASFs) or networks that are superimposed on varying scales and interact with one another through the agency of actors (Moore 1973;Vanderlinden 1993;Kleinhans and MacDonald 1997).…”