Customary and Religious Law: Current Perspectives in Legal Pluralism
Legal pluralism (hereinafter LP) has its origins in anti-formalist legal science, and it has become entrenched in the sociology of law to become a fundamental paradigm of legal anthropology. Over the last twenty years, most contributions to the literature on Legal Pluralism have indeed been made by legal anthropologists. The two disciplines now overlap: at present most legal anthropologists, about 400 in number, are members of the Commission of Folk Law and Legal Pluralism.
In the last ten years the LP approach has attracted the attention of scholars from disciplines other than legal anthropology. Various attempts have been made to reintegrate LP within broader theories of society and law. It is of course beyond the scope of this paper to illustrate all of these perspectives. I would simply point out how LP has not only become an essential reference point in the post-modern vision of law (Sousa Santos 1987), but has also been analysed and placed within neo-systemic theories of law (Teubner 1993).
Some exponents of legal science have also found the LP approach useful for handling new types of legal situations and their complex relations. Several attempts have been made to reformulate the notion of LP in ways that better suit the needs of legal practice. One example is the concept of "legal polycentricity", which is well established in Scandinavian legal science. This concept, according to its authors, "indicates an understanding of 'law' as being engendered in many centres, but while the LP approach characteristic of sociologists and anthropologists is traditionally descriptive and external. Legal polycentricity attempts to reform the understanding of law from inside, and to influence the approaches taken by legal doctrine" (Petersen and Zahle 1995, p.8).
As rightly emphasised, attention to pluralism has also had the effect of highlighting the problem of a hierarchical concept of law, and drawing attention to social groups with less power, to their institutions and their discourse - something that official representations of unitary law tend to make invisible. It is not surprising that some exponents of feminist legal theory have specifically turned to models of LP in their search for a conceptual framework that makes it possible to understand a wide range of informal norms governing women's lives These norms cannot be ascribed to formal state law, although they are related to it. They cannot be fully understood using the instruments of official (male) legal science alone, but they constitute an essential part of women's legal lives and can become a basis for the construction of formal women's law.
In the face of this tendency towards LP, various scholars have reformulated a basic objection to the paradigm, namely that it is difficult, or in any case inappropriate, to refer to law outside of the state legal system and establish criteria for the selection of rules to call legal norms from among the array of social rules. Indeed, the more or less explicit premise underlying the concept of LP is plainly a notion of "law" that transcends the sphere of the state legal system.
There has also been some perplexity as to the use of the term "legal" and the difficulty of drawing a boundary between legal and non-legal norms and identifying a non-state law, as has emerged in some important legal anthropology writings, both explicitly, as in Merry (1988), and implicitly, as in Falk Moore (1973), who refers to normative fields rather than law, and Roberts (1979), who discusses orders and disputes.
At present most anthropologists whose research focuses on LP consider irrelevant a clear-cut definition of what is or is not law. Generally speaking, they assume the stipulative character of the definition of law and confine their search to notions that work in their individual fields of research.
From the standpoint of anthropological and sociological research, which is deemed descriptive or in any case external to the formulation of law, the issue is not particularly significant. I myself prefer to speak of normative pluralism, as this avoids any ambiguity: it does not put forward a meaning of "law" that is far removed from common usage and usage among lawyers. At the same time, it broadens the term to refer to a complex set of norms that I find difficult to consider as "legal", but which can come into play with positive legal norms or institutional norms such as, for example, the regulations governing a football club or the rules for Muslim prayers.
I will not further elaborate on this point here, however, as I prefer to discuss another aspect that has emerged in recent works on the concept of LP: the emphasis on subjects, individuals, social actors. In particular, I will refer to a significant field of the current application of LP: that of European multicultural societies. It is a field in which customary and religious law plays a primary role.
By the late nineteen eighties, some scholars had begun to propose subjective notions of LP (Vanderlinden 1989) which referred not to a plurality of legal systems, as had traditionally been the case, but instead to individuals and the choices that subjects make between norms from different sources and of different contents. In other words, they suggested that an "actor perspective" be adopted as an instrument for dealing with the polycentricity and fragmentation of legal systems.
At first glance, these proposals might seem to contrast with the emergence of older and newer collective identities demanding recognition and rights. However, it is the very multiplication of groups that has led to a re-evaluation of the individual as a final reference point in the search for the composition of different normative identities, and the potential conflicts among them. It has been emphasized how individuals in contemporary society belong to several reference groups: their identity is fragmented and they are therefore subject to models and rules that are not always compatible. In Amy Gutmann's words: People, not only societies, are multicultural (Gutmann 1993).
It seems to me that this is particularly true in the case of immigrants. Even if foreigners residing in Europe officially maintain the legal norms of their country of origin only in those areas that relate to international private law, in reality they autonomously regulate many of the relations among themselves, and even when these relations do have legal relevance, they escape the control of institutions in the host country. Moreover, traditional and religious laws remain valid for many of those who acquire citizenship in their host countries.
However, these situations are very fluid, and they vary in time and space. In fact, the situation of LP among immigrants is of a heterogeneous and precarious nature. Immigrants refer to a number of laws deriving from numerous sources: not only the positive laws of their country of origin, but also religious, customary, transnational and infranational rules that often have a personal or ethnic, rather than territorial, validity. These rules are not necessarily recognised by state systems, but they are equally effective. Stable residence in a foreign country, moreover, leads to a change in native institutions through the customary, constantly evolving formation of syncretic norms (see, for example, Rude-Antoine 1990).
When dealing with multiculturalism in Europe, it should be emphasized that the term refers primarily to immigrant groups, not to ethnic minorities. Immigrant populations in Europe differ widely even within their own communities. Even groups that are deemed minorities on the basis of geographical origin, religious beliefs, and so forth are in fact fragmented, barely-institutionalised populations that have little internal organisation and lack a well-defined external identity. The very term "minorities" poses its own problems when applied to immigrant populations. So-called Islamic minorities, for example, are defined as such in relation to the Catholic or Protestant majority, yet they share very few common traits amongst themselves. In Italy, as in other European countries, there is not one, but many Islamic minorities, or rather, Muslim communities.
From an operational point of view, therefore, heterogeneity and the lack of institutional organisation amongst immigrant populations residing in Europe do not help in identifying representative institutions: there is a risk of creating a culture that refers only to the most organized and powerfully-voiced claims. There is also a risk of imposing obligations even on individuals who do not identify with them.
It is precisely these characteristics of the majority of immigration cases which have led, I believe, to the emphasis on a particular notion of LP.
LP could mean not only co-existing systems, but also just single rules or mechanisms. In particular, systemic or institutional concepts of pluralism, from Santi Romano (1945) to Sally Falk Moore (1973), are unsuitable. Apart from cases of long-established communities, in contemporary multiethnic European societies we seldom find ourselves dealing with legal systems, "social bodies" or "semi-autonomous social fields" - namely, groups able to create or apply their own independent legal systems. We are more likely to find individuals who follow rules deriving from different legal systems, which are often largely abstract notions with few empirical counterparts. For immigrants, systems have disintegrated, and their current situation has led to new forms of interrelation between often contingent rules which are alien to their native systems.
Thus I prefer to use the term "normative pluralism" in two senses: norms that are not necessarily legal, as I mentioned earlier, norms that are neither systems nor institutions. The concept of LP that works best in multicultural scenarios, with their heterogeneous sources and variety of solutions to cohabitation, integration and conflict, makes references to subjects and norms rather than to communities and predefined legal systems. It is based on the point of view of the individual, on the role that specific institutions, rules and beliefs guiding conduct, and conflict-management strategies, play in his or her culture and daily life.
From the point of view of subjects, the conflict between different identities can in no way be resolved by law, which can merely simplify or transform conflict; yet it is precisely because some aspects of identity cannot at the end be reconciled that the way forward might be that of paying greater attention to individual attempts at reconciliation.
If individuals internalise norms chosen from different sources, I believe that it is this moment of choice which is essential and must be considered, and even offered legal protection. Reconstruction of the subject's point of view and the choices he or she makes is fundamental for sociological research, but it also constitutes a basis for multicultural policies that guarantee and promote the individual. Such an approach constitutes the basis for empirical knowledge which does not flatten individual choices based on abstract notions of legal orders or homogenous groups. It could also help to guarantee the protection of powerless subjects, whose interests, values and choices could be suppressed or ignored within the community to which they belong (here I am thinking particularly of women).
Acknowledging what is considered the official legal order of the community could and probably would limit the freedom of some individuals. Moreover, treating individuals as collective subjects could in some cases lead to artificial confrontations and an increased number of conflicts, a scenario which could be avoided by concentrating on the specificity and needs of individuals and thereby avoiding both a rigid Western conception and a superficial notion of these individuals' cultures of origin.
It seems essential to me, therefore, to stress the importance of the individual and his or her independence of choice, both from the sociological perspective for an analysis of pluralism, and from the perspective of legal policies. Generally speaking, the ethical and political implications of the attention paid to LP are clear: an awareness of difference, and an attempt to understand it, are the first steps in recognising and dealing with multicultural societies and applying the principles of multiculturalism.
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