Legal Pluralism in India : An Introduction

Christoph Eberhard*

Nidhi Gupta**

 

Published in Indian Socio-Legal Journal XXXI, 2005, p 1-10

 

India is and has been a land of pluralism par excellence. Symbiotic co-existence of diverse forms of life, as a given, immutable fact associated with human existence, grounds every sphere of life, religious, legal, cultural, social, etc. Accommodation of diversity, neither to tame nor simply to tolerate it, but to allow it a natural flourishing, has always been the principal criteria for organising individual and social existence in India. Traditionally, acceptance of diversity and pluralism as internal criteria for social existence had ensured that different social groups or communities could enjoy, to the maximum extent, freedom to nurture diverse methods or ways for, organising, sustaining and perpetuating their particular forms of life. In other words, prevalence of these criteria enjoined that law could be seen and understood as what members of any community or group treat as law. This original and pluralistic outlook on the world and on society may explain that pre-colonial India did not move in the direction of what is understood as “modern law” which is characterized by a thrust towards uniformization and a “gardening” of society[1] through a legal system that is abstracted from social life. Indeed, modern law is characterized by general and impersonal rules to be imposed in a uniform way by an external authority, the state, which holds the monopoly of legitimate violence. For a long time the modern project of the rationalization of society’s organization via state law and the walk towards uniformity, usually presented as a move towards universality, has been equated to civilization whereas pluralism was interpreted as a sign of allegedly ‘primitive’ societies.

It is interesting to note that legal pluralism, as an academic/scientific concept is closely related to the West’s colonial past : the unitary myth of law was challenged by the coexistence in the “civilized societies” colonies of colonial law with multiple indigenous systems of “primitive law”. Sally Engle Merry notes, “Early twentieth century studies examined indigenous law ways among tribal and village peoples in colonised societies in Africa, Asia and the Pacific. Social scientists (primarily anthropologists) were interested in how these people maintained social order without European law.”[2]

Having found its raw material in the ‘exotic’ remote corners of the world, in 21st century, the concept of legal pluralism seems to have transcended geographical boundaries. Nowadays it is not anymore confined to “exotic societies” but serves as a general tool to understand law in all its complexity. As Sally Engle Merry points out, “the intellectual odyssey of the concept of legal pluralism moves from the discovery of indigenous forms of law among remote African villagers and New Guinea tribesmen to debates concerning the pluralistic qualities of law under advanced capitalism.”[3] After a long spell of modernity and its emphasis on uniformity, homogenisation, certainty, it appears that the academic world cannot ignore any longer that ‘every society is legally plural, whether or not it has a colonised past.’[4]

In addition to the geographical development, in last years, this concept has also undergone internal conceptual evolution, as the use of terminology such as ‘weak legal pluralism’, ‘strong legal pluralism’[5]; ‘classic legal pluralism’ and ‘new legal pluralism’[6] indicate. Realisation about the inadequacy of hitherto accepted terms such as ‘customary law’ to denote the legal phenomena of the “indigenous” societies are reflected in the on-going attempts to find the labels for identifying legal systems based on different understandings of law, such as official law, state law, modern law, unofficial law, folk law, people’s law, tribal law, indigenous law, non-state law, customary law, received law, imposed law, transplanted law.[7] Some of the initial approaches towards legal pluralism which with hindsight appear to be restrictive, undoubtedly, prepared a platform for constructive deployment of the concept. They offered groundwork for the emergence of some insightful approaches such as ‘intercultural approach to law’[8], ‘critical legal pluralism’.[9] They have led scholars to suggest refined and complex methodological approaches in order to get a better and wider understanding of the legal phenomena of different societies.[10]

Roderick Macdonald presenting his approach as critical legal pluralism challenges the traditional conception of legal pluralism as interaction of neatly defined official and unofficial normative orders in one social field. He emphasises, ‘ “the normative regimes sought to be identified in a legal pluralistic approach are not stable, unambiguous, and self-contained regimes interacting along clear boundaries.”[11] He adds, ‘this conception of legal pluralism suggests that the sites of normative interaction operate on several levels at once, often taking the form of a broad zone of adjustment, in dynamic evolution and redefinition. These levels include the individual, the group and the societal.’[12] He underscores, ‘a critical legal pluralism’ twists the traditional analyses of law and society inside out. Rather than beginning with the premise that society (and communities) are entities that law can treat, it investigates how community members treat law. …. The law is within all members of the society.’[13] These reflexions echo Jacques Vanderlinden’s new concept of legal pluralism. He also points out to the colonial roots which need to be transcended in order not to see legal pluralism just as a coexistence of different legal systems which apply to a same situation within a society, but as more radically pluralistic phenomenon which has to focus on legal pluralism at the level of the individual.[14] Some authors although fundamentally interested in the plural nature of law prefer to avoid to use the term legal pluralism. Étienne Le Roy for instance prefers to talk of “multilegalism” (multijuridisme in French) to rather refer to the plural nature of law, understood as legal phenomenon, itself, rather than just an addition of “laws” or “legal systems”.[15] This choice is consistent with Robert Vachon’s insights on the intercultural constraints of a reflexion on legal pluralism. Robert vachon advocates a much more pluralistic and intercultural “legal pluralism” than what is usually understood by the concept and which remains a very Western concept.[16] Some of the present ‘epistemological challenges’ are certainly to ensure that analyses focussed on legal pluralism do not obscure more than they reveal, that they do not fall in the trap of the ‘encompassing the contrary’ while pursuing the task of understanding culturally diverse realities of human existence. Therefore a shift towards the understanding of the plural nature of law seems necessary in correlation with the question of intercultural comparison or dialogue between different “legal traditions”.[17]

Increasing deployment of the concept of legal pluralism in scientific, scholarly works along with constant rethinking of the epistemological framework for understanding legal phenomena in different societies indicate that the socio-legal world is realising the futility and impossibility of delimiting life spheres into distinct autonomous domains, such as law, religion, morality, politics. Gradually it is being considered necessary to unveil the ‘myth of modernity’,[18] to lay bare the ‘mythology of modern law’,[19] to unmask the precocious claims of the ‘civilised’ world for the conquest of reason over myths, of rationality over irrationality. This concept has offered some tools to question the notions of ‘civilisational progress’.  Passing through a phase of academic scepticism, resistance, rejection, ridicule, ignorance[20] in last few decades,[21] it can now be claimed, that legal pluralism has gained itself a place as a ‘key concept in a postmodern view of law’,[22] as a ‘central theme in the reconceptualisation of the law/society relation’.[23]

At this stage of the growth and acceptance of the concept of legal pluralism, an aspiration can be expressed that increasing awareness of its utility will ultimately serve the purpose of enriching our general understanding of law and of the relationship between law and society in all legal systems, having colonial past or not. For countries with the colonial past it can be asserted more confidently that the formal/official recognition in the academic world that law is what different groups or communities treat to be law will have special significance. One can hope that this recognition will direct academic energies for fighting the widely prevalent elitist tendencies, which have painted indigenous complex legal systems as ‘frustrating, messy, and obstructive to progress.’[24] Perhaps, ways could be devised for resurgence of the indigenous practices, which have either been pushed out of sight, or have been derecognised, illegalised, or simply ignored earlier as a result of colonisation and now in the post-colonial era in order to realise ‘modernisation’. A serious and open recognition of legal pluralism can be expected to generate genuine interest in diverse indigenous ways of life on their own terms, not for the purposes of reforming them in accordance with certain pre-determined notions of ‘progress’. It will perhaps be possible to restore people’s autonomy over their life spheres, to reduce communities’ dependence on all powerful state, to find measures to bring the state and its law to its supervisory, facilitative role which enjoys not an autonomous but a symbiotic existence with the society.[25]

The collection of essays presented in this volume embodies most of the above-mentioned challenges, problems and aspirations associated with the concept of legal pluralism in India. Like any other ex-colony, post-colonial India too, maintains an ambivalent attitude towards pluralism in general and legal pluralism in particular. While pluralism and diversity continues to characterise every aspect of life, zeal of modernity and ‘development’ has pushed it into the domain of unofficial yet highly influential reality. Until recently, the academic scholarship on India, both by Indians and Western scholars, has either ignored the domain of unofficial reality or has analysed it through colonial (Western) frame of reference. Perception of indigenous ways of life as backward, as obstacle to progress still informs the post-colonial scholarship advocating legal reforms.[26] However, scholarship in the last two decades reflects a shift where young scholars have considered the existing frameworks of analysis as wanting as well as misrepresentative of Indian socio-legal reality. ‘Epistemological challenges’ calling for rethinking the analytic frameworks that have so far been deployed to make sense of Indian reality have begun to emerge. Necessity of comprehending legal phenomena through ‘intercultural approaches to law’ is being emphasised.  The signs of moving towards ‘critical legal pluralism’ instead of ‘traditional legal pluralism’, analysing legal pluralism as a matter of interaction of state legal system and non-state legal system[27] can be seen on the horizon. Another trend, which could be seen as yet another step, is the move from a focus on legal pluralism to a focus on a pluralist approach to law, understood as legal phenomenon.[28]

This special issue on the legal pluralism in India is an attempt to catch this encouraging shift in the scholarship. The contributions included in the volume, by no means exhaustive, yet represent a broad range of issues and challenges for the Indian socio-legal scholarship. Considering the nature of the contributions, this volume can be divided into three main waves. The first wave of contributions deals with legal pluralism in the context of natural resources’ management and is thus also closely related to the question of sustainable and participatory development. The second wave of texts is concerned with family law and what we could term more specifically women’s rights. The last papers deal with the question of legal pluralism on the level of the political and legal ordering of the Indian state.

Ajit Menon introduces our reflexion with an example of legal pluralism and land use change in the Kolli Hills. He provides a good overview of scholarship on legal pluralism before illustrating the stakes in a concrete example which raise our awareness to the fact that legal pluralism is not only about conflicting or coexisting legal orders, but also about a pluralism of worldvisions and of interpretations of the world. Even the legal objects “forests” and “forest resources” are constructed realities. State law appears thus more than only an order of regulation. It is also a symbolic order. By the force given to it by the state it may appear as a universal and objective view of reality but concrete field studies show the pretention of this view. They reveal the relativity of interpretations of the world and illustrate the complexity of interacting visions, discourses, practices and regulations. As Ajit Menon notes “customary law is not necessarily a well articulated phenomenon with clearly defined rules of use (as opposed to rules in use) and procedures for monitoring and enforcing these rules.” In order to understand it, one needs to adopt a more open-ended approach and to reverse the point of view : the question of land use practices must not be asked from the point of view of law. Rather the contours of law emerge through thorough analysis of the land use practices. This insight that social life is not an application of law, but that law is only the tip of the iceberg of social relations and can only be understood by being referred to the whole social reality will also be underscored in numerous other contributions.

Satapriya Rout’s article on customary rights and legal pluralism in joint forest management in Orissa echoes Ajit Menon’s analyses. It also highlights the fact that pluralism not only exists between state legal orders and customary orders. On the one hand the state is far from being a monolithic block. “Several institutions of state mechanism often come out with contradictory policies, which are based on different sets of legal regulations and pursue different interests.” On the other hand “traditional practices” are also pluralist and most important their mutual interplay and relationship with state law can only be understood in their dynamics : “the basic physical nature of natural resource is such that it is embedded in an environment where action by one individual or a group of individuals to capture it may affect the amount of resources available for others. (…) The complex and unequal power relations among wide range of actors in the social space where the natural resource is embedded also forms a reason for conflicts over it …” It appears very clearly in this article that rethinking law from the point of view of society forces us to abandon a static view of law and to engage in a dynamic approach.

J.B. Rajan shifts our attention from forests to fisheries, through a study of legal pluralism of fishing rights in Peechi Reservoir, Kerala. The author introduces the transnational horizon in his paper as his study analyses the effects of an Indo-German Reservoir Fisheries Development Project whose object it was to better the living conditions of economically and socially backward communities by improving fisheries as a source of income of the rural population living on the shore of artificial lakes in Kerala. The project introduced major changes in the area and led to a conflict between the new fishers whose rights were guaranteed by the state, and the traditional fishers who lost all their rights, their customary rights not been recognized. As the author notes in his conclusion “The Government perceived the programme for scheduled trube/scheduled castes, but could not foresee the other customary users of the reservoir. The settlers, who have been utilizing the fish resources for a long time, have not been considered while formulating the IGRFDP. (…) there is an increasing multiplicity of rules attached to the use of natural resources and an apparently ensuing increase of confusion and frustration on the part of both the makers and the targets of the law. (…) The ultimate result is that the German team has withdrawn from the project with the disgrace of utter failure ! This gives a lesson to consider legal pluralism while formulating policies and laws by the state.”

With Ruchi Pant’s analysis of the Impact of Transnational Processes of Law on Right to Water, we stay in the domain of rights on water. As in J.B. Rajan’s text awareness is also attracted towards transnational actors. Ruchi Pant brings in a new element in the reflexion through the question of a fundamental right to water as human right sanctioned by international human rights law. Pluralism, as seen above exists not only amongst legal orders, but also within them. If we were already confronted to customs’ pluralism, state law’s pluralism, the author draws attention to the pluralism of global or transnational law : “On the one hand, there is substantial body of international law which ascribes a natural right of all people to water, yet on the other hand one can see the looming threats from a new body of international law which results in the violation of this basic right. The trend of privatisaton of services including water under the new trade regime is being perceived as a major violation of human rights by curtailing peoples’ rights to water thereby affecting their livelihood and life.” In between “global hegemony” and “fractured sovereignty”, it seems to be necessary to rethink the role and the responsibilities of the state as a link between the global and the local forces and stakes.

The second wave of contributions on women’s rights, is introduced by Livia Holden with a study on divorcing by custom and women’s agencies and lawyers’ praxis in (un)official Hindu law. The stress on the lawyer’s praxis is extremely interesting as the latter seems to act in a space in-between customary visions, practices and discourses and the state law. It even gains interest as the observed practice, divorce, is not really accepted in the traditional view. Thus here again the positing of the analysis on the ground of practices and not of theoretical discourses of mainstream Hindu tradition or of state law permits to understand the complex interweaving of discourses and practices in a way to make sense for all the concerned parties. “In such a complex and ambiguous situation, the notaries public of the small towns perform a skilful job as privileged interpreters of both customers and official law, juggling between the agencies of their clients and the positivist and centralist needs of the formal legal system. As it has been seen in the lawyer’s discourses official law provides the tools for both recognizing and reducing customary divorce to non-representative exceptions confirming the orthodox rule of indissolubility of Hindu marriage.” The author further notes that although a certain métissage and a certain flexibility is achieved, the underlying worldvision nevertheless remains the one of the Hindu orthodox view of the sacredness and indissolubility of marriage. It appears that on the level of practice many arrangements and negotiation of solutions are possible which seem completely unthinkable from a purely theoretical point of view.

Reena Patel’s contribution is slightly more positivistic than the other contributions. It deals with Women’s Rights to Property under Hindu Law and seeks to evaluate the extent to which the current law in India provides a framework for independent ownership rights of Hindu women. In order to do so the author choses to put her analysis in a historical perspective, thus showing that “the development of Hindu law has resulted in the institution of religious normsas binding law within the contemporary legal system. To the extent that enacted laws establish the legitimacy and operation of religious norms (…) there arises a tension when alien principles are brought within the frame of existing religious / legal norms. Thus (…) law operates to perpetuate and actively sanction the practice of religious norms and values affecting the individual directly, and social institutions like the family, indirectly.” This meeting of legal and religious and cultural norms is a good illustration of the complexities and the stakes of legal pluralism and does more specifically put the question of legal reforms in the light of legal pluralism as is well illustrated in the author’s conclusion : “Whereas the normative structure of classical Hindu Law is based upon a conception of the female as dependent, servile and lacking autonomy, the present legal regime seeks to build upon that very same structure in order to create and establish the Hindu female as an autonomous property-holding individual. Although it seeks to go beyond the entitlements due to females in terms of maintenance and endow them with independent property ownership as their legal entitlement, the question that remains is to what extent this is feasible without the establishment of a non-religious, secular framework within which this may be fostered. As long as law retains the ‘Hindu’ family, can ‘Hindu’ norms be totally revamped ?”

The discussions on the concrete issues concerning women’s rights is followed by the text of Nidhi Gupta which analyses the relevance and utility of the concept of legal pluralism for women’s rights within family law in India. Arguing for the inevitability of legal pluralism for the purposes of gender justice this text offers certain epistemological challenges for the contemporary discourses of women’s rights in India. It contends that prevalent discourses of women’s rights, both international as well as Indian, are based on crucial misunderstandings by scholars and activists of Indian society’s understanding of the notion of rights, of the notion of law, and therefore of its relationship with law. Focussing specifically on Hindu religion and Hindu family law it further emphasises that the dominant discourses of Indian women’s rights are misguided, pursuing their struggle on the basis of Western and colonial misconceptions about the nature of Hindu society and Hindu family law. Based on these misconceptions, these discourses have been privileging, perhaps inadvertently (but probably not by accident), unrealistic and uncalled for aspirations regarding Indian society. They serve to impose the colonial, modernist and allegedly universal notions of ‘emancipation’ and models of progress, manifesting themselves in law as well as through the relationship between law and society, and leading to particularistic understandings of rights as the basis of organisation of a developed society. These discourses, while propagating the aim of equal legal rights, have failed to take into account limitations of the modernist legal rights discourse in general, and for Indian society in particular. Nidhi Gupta, focussing on the general issues of women’s rights, claims a recognised space for elements of tradition as part of the present and the future, and to argue for the constructive application of legal pluralism for the purposes of securing gender justice in family matters.

After the excursion into family law, the last contributions deal with the general issues of legal pluralism in the context of Indian legal reality. A. P. Singh makes a nice transition towards this last wave in his article where he develops the thesis that legal pluralism is the essence of India’s classical legal ordering, which he illustrates through the example of adoption in Hindu law. After a presentation of current theories on legal pluralism, the author turns to the Indian paradigm. If in Western law pluralism rather appears as a problem, an anormality of law, classical Indian legal thought has always emphasized pluralism. It is thus very important to differentiate the underlying horizons of thought to be able to understand Indian approaches to law adequately. For A. P. Singh the recognition of pluralism in the Indian system goes hand in hand with a stress put on authority which contrasts to the stress put on legality in Western systems. Indeed, law instead of being seen as the expression of the state’s power directed towards uniform regulation of all the citizens’ lives, is based on smriti, whose precepts are an authority “(…) because they are the expression of a law, which rules human activity in the sense we understand that word in natural sciences. (…) this law has no constraining power in itself. It really puts forward an ideal ‘lightpost’ that everybody attempts to conform to, but in his own way. (…) The ideal received the dynamic imparted to it by faith by Hinduism itself with the result that the custom and written law were inextricably woven together to give rise to law.” A. P. Singh draws another important conclusion which stresses the role of law as that which shapes the reproduction of our societies: analysis should “move away from an exclusive focus on situatios of dispute to an analysis of ordering in non-dispute situations”.

Probably the link of law and politics make us especially aware of law’s deeper essence, which cannot be reduced to conflict resolution alone, but rather consists if we build on Michel Alliot’s definition of law, on the putting of forms and putting into forms of the struggles and the consensuses of the outcomes of the struggles a society considers as being vital.[29] With his contribution on decentralization, politics and legal pluralism in West Bengal, Douglas Hill stresses this governance aspect of law. The case study he presents is especially interesting as it permits to illustrate the tensions between legal pluralism and decentralization via the implementation of Panchayati Raj (government of village community). It also highlights the close link between law and politics, which should not be a surprise to the social scientist, but nevertheless constitutes a challenge to any “pure theory of law”,[30] a vision which continues to influence numerous lawyers’ outlook on law. Further politics cannot be disentangled from economic conditions. We thus again find ourselves in a situation where in order to understand the legal game in a context of implementation of decentralization and implementation of Panchayati Raj, the questions must not only be put from an institutional point of view, but need to be asked from the broader social context in which the institutionalization is taking place. “(…) the devolution of responsibility to the Panchayats is hollow unless they also have considerably more fiscal devolution. (…) a full account of legal pluralism needs to account for another normative order, that of the evolving global economic system, of which India’s recent tryst with liberalization in certainly a part. The evolving centre-state relations are thus the broader context in which the micro-politics of the Panchayats are taking place.”

This last remark that points to the need to view the problematics of legal pluralism as processes embedded in different, coexisting temporal and spatial scales, well introduces D. Parthasarathy’s reflexion on the shifting fields of legitimacy through the analysis of globalization and resistance in a historical perspective. D. Parthasarty shifts the centre of analysis from the usual emphasis in studies on legal pluralism in a context of globalization on reduced sovereignties of the state and increased power in the hands of transnational bodies to the other side of the coin : the implications and ethical and political consequences of bypassing democratic institutions for non-democratic external agents as is happening with the increased forum shopping by rights groups, NGOs and people’s movements against development policies and projects. His historical approach puts this trend into perspective through showing that “(…) historically, while the refusal to accept ‘imperial’ or ‘colonial’ intervention  in the case of ‘desirable’ social reform was a significant trend during the national movement, there have also been periods when groups have sought colonial intervention, perceiving colonial rule and legal-juridical systems as less arbitrary than systems deriving from the indigenous social order.” Thus if the problematic of conflicts and contradictions arising from external interventions in the legal and judicial sphere of a nation are not new, these questions take a new significance in the contemporary context where project law seems to often overrule state law and where the new twist seems to be an economicisation[31] of society fundamental ethical and political challenges emerge, where “good governance” is presented as a neutral and “good tool” but which in fact conceals issues of powerrelations and the distribution of power : “(…) despite the ‘modernizaton’ aspects of legal and institutional changes brought about by economic liberalization and globalization, by being tied to very pragmatic objectives such as profits, cheap labour, efficiency and so on, external interventions in the legal sphere, while offering increase choice for forum shopping and making the legal system less arbitrary, at the same time downplay values and ideologies which are significant in politicizing issues of equity and justice.”

In the last contribution of this issue of the Indian Socio-Legal Journal on Legal Pluralism in India, Christoph Eberhard wonders if the present challenge is not to go beyond legal pluralism as an analytical frame in order to understand law’s games in modern India. Building on the insights gained in the different contributions the author argues that more than the recognition of legal pluralism, the main stake is to start rethinking law in a pluralistic and intercultural way. This can only be achieved if the point of view is changed and if law is seen from the point of view of the totality of social life, instead of viewing it–and in some cases even social life – from the point of view of law, often even reduced to a statist view. This entails a dynamic anthropology of law such as developed by Étienne Le Roy.[32] It also entails to engage in genuine intercultural dialogue in order to be able to emancipate debates from a framework which is largely undermined by Western conceptions which are still presented as the universal horizon for the organization of human living together. This paper is also an attempt to make Francophone approaches to legal anthropology available for an Anglophone audience.

 



* Facultés universitaires Saint Louis, Bruxelles / Laboratoire d’Anthropologie Juridique de Paris.

** Katholieke Universiteit Brussels / Indian Institute of Comparative Law.

[1] See Bauman Zygmunt, 1987, Legislators and Interpreters - On Modernity, Post-modernity and Intellectuals, 209 (Great Britain, Polity Press, 1987) Especially the Chapter “Gamekeepers Turned Gardeners” p 51 ss

[2]  Sally Engle Merry, Legal Pluralism, 22.5 Law and Society Review, 869 (1988)

[3] Sally Engle Merry, id. 869

[4] Sally Engle Merry, ibid; Harold J. Berman, Law and Revolution, The Formation of Western Legal Tradition,  (Harvard University Press, Cambridge, USA, 1983). Berman argues that pluralism has been one of the specific characteristics of the Western Legal Tradition.

[5] John Griffiths, What is Legal Pluralism?, 24 Journal of Legal Pluralism and Unofficial Law, 1-55, (1986)

[6]  Sally Engle Merry, op. cit. supra f.n. 2 .

[7] Antony Allott and Gordon R. Woodman (eds.), People’s Law and State Law, The Bellagio Papers, (Foris Publications, The Netherlands, 1985)

[8] Christoph Eberhard, Towards an Intercultural Legal Theory, 10.2 Social and Legal Studies, 121-201, (2001)

[9] Roderick A. Macdonald, Critical Legal Pluralism as a Construction of Normativity and the Emergence of Law, in A. Lajoie, et. al. eds. Théories et émergence du droit : Pluralime surdetérmination, effective, 12-23 (Montreal : Editions Themis, 1998)

[10] J.F. Holleman, Trouble Cases and Trouble-Less Cases in the Study of Customary Law and Legal Reform, 7.43 Law and Society Review, 585-605 (1973).

[11] Macdonald, op. cit. supra f.n. 9 at 18

[12] Ibid.

[13] Macdonald, id. at 23

[14] For Vanderlinden’s new concept of legal pluralism see Vanderlinden Jacques, , “Return to Legal Pluralism : Twenty Years Later ”, 28 Journal of Legal Pluralism and Unofficial Law, 149-157; (1989) Vanderlinden Jacques, “Vers une nouvelle conception du pluralisme juridique ”, 18.2 Revue de la Recherche Juridique-Droit prospectif, 573-583. (1993). For a critique on its individualistic character see Gordon Woodman, “Why There Can Be No Map of Law”, in Rajendra Pradhan (ed.), 3 Legal Pluralism and Unofficial Law in Social, Economic and Political Development. Papers of  the XIIIth International Congress of the Commission on Folk Law and Legal Pluralism, 383-405, (Kathmandu, ICNEC).

[15] See for example Le Roy Étienne, “L’hypothŹse du multijuridisme dans un contexte de sortie de modernité », Lajoie André, MacDonald Roderick A., Janda Richard, Rocher Guy (éds.), Théories et émergence du droit : pluralisme, surdétermination et effectivité, 29-43 (Bruxelles, Bruylant/Thémis, 1998)

[16] Vachon Robert, “L’étude du pluralisme juridique - une approche diatopique et dialogale”, 29 Journal of Legal Pluralism and Unofficial Law, 163-173 (1990).

[17] Eberhard Christoph, “Towards an Intercultural Legal Theory - The Dialogical Challenge”, 10.2 Social & Legal Studies. An International Journal, 171- 201 (2001) and Eberhard Christoph, “Penser le pluralisme juridique de maniŹre pluraliste. Défi pour une théorie interculturelle du Droit”, 2 Cahiers d’antrhopologie du Droit, 51-64 (Karthala, 2002). We shall also come back to this question in the conclusion of this issue.

[18] Peter Fitzpatrick, The Mythology of Modern Law, (Routledge, London, 1992)

[19] See also Lenoble Jacques, Ost Franćois, Droit, mythe et raison. Essai sur la dérive mytho-logique de la rationalité juridique, 590 (Bruxelles, Facultés Universiatires Saint Louis, 1980)

[20] For a skeptic attitude towards the concept see for example Brian Z. Tamahana, 20.2 The Folly of the ‘Social Scientific’ Concept of Legal Pluralism, Journal of Law and Society, (1993).

[21] Macdonald, op. cit. supra f.n. 9 at 16-17. Macdonald has analysed various streams of critique of the concept of legal pluralism.

[22] Boaventura De Sousa Santos, Law: A Map of Misreading; Toward a Postmodern Conception of Law, 14  Journal of Law and Society 297 (1987)

[23] Sally Engle Merry, op. cit.,supra f.n. 2 at  869

[24] Sally Engle Merry, id. at 871

[25] J.F. Holleman, op. cit. supra f.n. 10 at 603-5, Holleman has forcefully argued for the necessity of serious recognition of legal pluralism for the purposes of legal reforms in most of the ex-colonial states.

[26] Vasudha Dhagamwar, Invasion of Criminal Law by Religion, Custom and Family Law, Economic and Political Weekly, 1483-1492 (April 12, 2003)

[27] Upendra Baxi, “People’s Law, Development and Justice”, Csaba Varga (ed.), Comparative Legal Cultures, 465-482 (Great Britain, Dartmouth, The International Library of Essays in Law and Legal Theory Series, 1992).

[28] See Étienne Le Roy’s introduction to the issue of Cahiers d’anthropologie du Droit, 7-17 (2003), “Les pluralismes juridiques”, whose title “Le pluralisme juridique aujourd’hui ou l’enjeu de la juridicité” directly links the issue of legal pluralism to the challenge of a renewed pluralistic approach to Law, by shifting the point of view from a legal perspective to a perspective on Law from the point of view of society as a whole. This view echoes Franz von Benda-Beckmann’s reflexions in “Who’s Afraid of Legal Pluralism ?” (in Rajendra Pradhan (ed.), 3 Legal Pluralism and Unofficial Law in Social, Economic and Political Development. Papers of  the XIIIth International Congress of the Commission on Folk Law and Legal Pluralism, 417 (275-298) (Kathmandu, ICNEC), which he concludes noting that “(…) the discussions easily become sterile unless they are rooted in the analysis of empirical situations and historical processes, and unless they are made part of a more comprehensive social scientific understanding of the social world of which law and legal pluralism, however defined, are only one aspect and part.”

[29] Michel Alliot, 2003, “Anthropologie et juristique. Sur les conditions de l’élaboration d’une science du droit”, in Le droit et le service public au miroir de l’anthropologie, 400 (283-305) (textes choisis et édités par Camille Kuyu), (Paris, Karthala)

[30] Hans Kelsen, 1960 (1934), Reine Rechtslehre, 534 (Baden bei Wien, Verlag Franz Deuticke Wien)

[31] see Latouche Serge, Justice sans limites. Le défi de l’éthique dans une économie mondialisée, 360 (France, Fayard, 2003)

[32] Le Roy Étienne, Le jeu des lois. Une anthropologie “dynamique” du Droit, 415 (1999, France, LGDJ, Col. Droit et Société, Série anthropologique)