Introduction: the realities of pluralism

The starting point of this chapter is somewhat different from that of most contributors to this volume, in part because of my late-comer status to the project, as well as my outsider perspective. Some European legal systems, but also Canada and the United States, have over time developed highly regulated state-centric methods of family law management that seemed to leave little or no room for religious and other authorities to make any input. Today’s agonized debates over the emergence of some eighty-five Sharia Councils and Muslim Arbitration Tribunals in Britain thus reflect surprise, to put it mildly, that supposedly strong states are in fact not fully in control of family law regulation.

Such debates (if one can call them that) show that it is not sufficiently well known in a global context that European and North American models of regulatory framework are not universally replicated all over the globe. Colonialism never fully achieved its ambitious civilizing missions. In particular, it did not wipe out most preexisting sociocultural (and thus legal) traditions, but it did influence them. Today there is certainly no single, global method of managing family relations through state intervention. Rather, there are many ways of handling family law. Individual states have gradually developed patterns that suit their country-specific needs and national identities. In many cases, however, colonial intervention and other interferences imposed certain patterns that are not even close to what one may call “indigenous.” Hybridity of legal regulation is thus a global fact everywhere; pluralism of methods, specifically in the management of family relations, is a global reality.

The sub-title of this chapter indicates deep problems in the discourse on African laws. For many reasons, African laws and African jurisprudence have always faced a barely hidden undercurrent of denial of African laws and their potential contributions to jurisprudence. Previous chapters demonstrated a serious deficiency of plurality-consciousness in understanding non-Western laws, mainly implicating positivist presuppositions, which have also heavily impacted on how African laws are perceived. While Islamic and even Hindu religious law dogma tends to overemphasise the place of divine legislation, thereby conflating positivism and natural law, scholarship about African laws remains heavily influenced by a brand of deficiency in plurality-consciousness which denies the existence of law in social contexts. Positivist bias is strongly reflected, leading to claims that there was no proper law in traditional Africa. Comparative law scholarship, too, has struggled with accepting that Africans have ‘proper’ law. More recently, the voices of Africa have been in danger of being drowned out by assertions of global human rights, to the effect that there is nothing of value in traditional African laws to contribute towards a better future for the world as a whole and the understanding of law as a global phenomenon.

A plurality-conscious perspective on the laws of Africa cannot ignore the people of Africa and their many cultures and languages. But can one even speak of ‘African law’, given this immense diversity?

Part I demonstrated from a variety of angles that cross-cultural legal comparison continues to face major global challenges. The overview of Western legal theory in chapter 3 confirmed that we have only just begun to appreciate the limits of theoretical endeavour in capturing the complex reality of legal pluralism as a global phenomenon. We are now able to see that no single major legal theoretical approach on its own, whether positivism, natural law or socio-legal methods, can encompass the internally plural phenomenon of law. Their pluralist methodological combination, in ways yet to be analysed and explored, promises a deeper understanding of the complex nature of law, but theory will never be able to capture the practically limitless real plurality of law. Problems over the acceptance of radical legal realism are clearly exacerbated by insistence on visions of globalising uniformity that fly in the face of plural socio-legal reality and end up in prescriptive normative tyranny. Part II provides many examples of such clashes of values and their implications. But the legal systems of Asia and Africa will not disappear, nor will they ever merge fully into some ‘global’ legal framework.

A major critique of existing efforts to make sense of other people's legal cultures still needs to be written and is not possible within the present study. The globally focused analysis of Asian and African legal systems raises complex but surprisingly familiar conceptual questions.

A conceptual overview of Hindu law must of necessity proceed chronologically. One cannot understand Hindu law and the present Indian legal system while ignoring the rich tapestry of older concepts. To demystify this confusing diversity, the present chapter starts with a brief historical overview, and then examines in detail ancient pre-classical, classical and late classical, post-classical and medieval Hindu concepts of law, before moving on briefly to Anglo-Indian laws and modern Hindu laws. This analysis aims to present the totality of ‘traditional’ Hindu law as an interlinked sequence of sub-systems, emphasising the inherent dialectics and dynamisms within traditional Hindu law and its enormous scope for flexibility and internal reform.

The study of Hindu law has long been neglected due to at least four major factors. In combination, and over time, these have led to worryingly low levels of knowledge, prompting even the Indian government to reinvigorate classical learning in this field (Narang, 1988; Sivaramayya, 1988; Jois, 1990). The first major factor responsible for insufficient depth in Hindu law research is declining knowledge in its classical, Sanskrit-based foundations, which has led to a vicious circle of suffocating scholarship. Today there are simply not enough Sanskritists interested in legal study, while ‘lawyers with Sanskrit’ have long been extremely rare. Recent efforts in this field reflect the urgent need for better understanding, or one simply reprints older work (Nanda and Sinha, 1996).

Secondly, lack of professional interest has taken away a major motivation for studying Hindu law.

The introduction indicated that the current state of jurisprudence and comparative law leaves much to be desired. There are disagreements about how to theorise and apply ‘law’. Law's constant demand for clearly defined categories has led to what Cowan et al. (2001: 10–11) call ‘the essentialising proclivities of law’. The discipline as a whole stands accused of misusing social categories and identities, claiming superior universal status for legal rules (p. 6) and ‘law’ itself has been essentialised in a reductionist manner (Griffiths, 2002: 293). In common parlance, the word ‘law’ itself immediately sets off all kinds of assumptions: ‘The mere word “law” has an honorific ring’ (Harris, 1980: 128). But we also know that all legal systems may fail to some extent to provide justice. Historical memories of slavery, Nazism, Apartheid and ongoing genocides evoke mixed feelings about the potential (ab)uses of law and legal systems. For many people ‘law’ remains associated with misuse of power, and disorder rather than order.

If globalisation means increasing hybridisation in locality-coloured and culture-specific forms worldwide, rather than uniformising homogenisation, lawyers need to be better equipped to understand the manifold pluralities within and between legal systems as complex entities with ragged boundaries. It seems that a plurality-focused understanding of globalisation challenges legocentric Western laws and questions much of what Western culture and modernity claim to stand for. Eurocentric legal theories claim universal validity while representing only a shrinking part of global humanity.

The previous chapters confirmed that legal academics are still struggling to free themselves from the shackles of ‘black letter’ traditions (Cownie, 2004) and ‘black box’ approaches (Twining, 2000). Given that ‘one of the main jobs of jurisprudence is the critical exploration and evaluation of prevailing assumptions underlying legal discourse – both law talk and talk about law’ (Twining, 2000: 12), a radical reappraisal of old-established Western concepts and assumptions of legal theory in the light of globality-consciousness and sensitivity to legal pluralism is needed. Indeed, ‘it is clear that if legal theory is to engage seriously with globalisation and its consequences a critical re-examination of its agenda, its heritage of ideas, and its conceptual tools is called for’ (Twining, 2000: 10).

Such critical re-examination of global validity must demonstrate that general jurisprudence is more than a Western phenomenon. All around the world, different legal cultures have developed their own ways of ‘law talk and talk about law’, which a plurality-conscious global jurisprudence must account for. Observing that globalisation has already stimulated major rethinking in many fields, Twining (2000: 50) argues that ‘jurisprudence has so far responded only patchily to these challenges, but that the prospects for a sustained response are better than might appear on the surface’. Sharing Twining's optimism, I hope to have shown through the previous chapters that significant progress has already been made in conceptualising legal pluralism and globality-consciousness in law.

Building on earlier pluralist models, this study began life in its first edition as an elaborate argument for greater recognition of socio-cultural factors in relation to law and global legal analysis. In its revised incarnation, this argument has been enlarged and modified to include more explicit emphasis on the need to perceive all law as constantly changing and inherently dynamic processes rather than merely a more or less static collection of rules. While law is about rules, it is also about their immensely diverse application in human societies. Consequently, the present study developed in Part I an interactive triangular model of law (chapter 3, section 3.8) centred on legal pluralism as a complex, constantly contested amalgam of state law, values/ethics/religion and socio-cultural norms. Analysis of the legal systems of Asia and Africa strongly confirmed the global presence of such simmering conflicts and tensions in various culture-specific manifestations.

One major dilemma exposed through such pluralist perspectives is that law can probably never fully satisfy all expectations. Law everywhere is constantly involved in negotiation, over time and space, so that it becomes virtually impossible to envisage such interactions in graphs on paper, which tend to give static impressions and do not bring out the inherent dynamism and volatility of legal processes. Nevertheless, towards the end of this chapter, a further graphic model is introduced to illustrate the complexity and fluidity of law as a global phenomenon.

Compared to Hindu and African law, the study of Chinese law faces a much less hostile research environment. While China's size, volatility and importance remain a challenge, the codification of imperial Chinese laws impressed most Western observers and left little room for doubt that the ancient Chinese had law. This also provided sufficient reason for comparative lawyers to include Chinese law among the legal families, though its precise place in global taxonomies remains debated. Since the existence of law in China has never been challenged, the present chapter only briefly considers different scholarly representations. It focuses on key aspects of Chinese laws, highlighting the plurality of legal systems under the collective term ‘Chinese law’. The core element is visibly the imperial Chinese system of statutory laws, a manifestation of legal positivism which extended, with numerous modifications, from 221 BC until 1911. Equally important in social reality, however, are various uncodified systems of Chinese cultural norms and values, often subsumed (and thus not clearly enough distinguished as natural law and custom) under the label of morality or ‘Confucian ethics’. These Chinese postulates (Chiba, 1989: 180) are of immense relevance for understanding the social reality of ancient and modern Chinese law. They point to inherent plurality-consciousness also within Chinese law.

At first sight, the discourse on Chinese law appears to give far less importance to ‘custom’ than to the Codes or the philosophies of Confucian ethics, suggesting that this legal system is incomparably unique in its reliance on philosophy and state-made codes.

In the late twentieth century, globalisation seems to have become ‘the cliché of our times’ (Held et al., 1999: 1). Linked to postmodernism, it has given rise to a large body of writing in many academic subjects. While postmodernism remains heavily contested as a concept and methodology, it seems that globalisation as a widely observable fact is not seriously challenged as a phenomenon. However, scholars argue vigorously about its consequences, and many debates focus on the role of the nation state in newly conceived contexts of global interconnectedness. There is as yet little discussion about how globalisation relates to legal theory and understandings of law. In common parlance, the term creates assumptions about the desirability of increased efficiency in processes of global communication. We immediately think of easier travel, homogenisation of trade laws and harmonisation or integration of all kinds of rules, easing communication processes by recourse to one language, one pattern of doing business, and so on. This is matched by the tempting assumption that there would be less conflict if only all humans thought alike, followed uniform moral standards and respected universal human rights.

However, is this realistic in view of universal plurality? Much universalised thinking about globalisation goes too far in its uncritical acceptance of the advantages of uniformisation. It is rather unreal to expect that the whole world would ever follow one rule system, one language and culture, or one law.

In the postmodern age, lawyers are re-learning that it remains impossible to draw clear boundaries between the legal and the non-legal. Debates about globalisation have precipitated this realisation (Flood, 2002). Several pioneers of legal pluralism studies provided useful starting points for further plurality-conscious analysis. Hooker (1975: 1) highlighted that ‘[l]egal systems typically combine in themselves ideas, principles, rules, and procedures originating from a variety of sources’, adding that ‘[b]oth in the contemporary world and historically the law manifests itself in a variety of forms and a variety of levels’ (p. 1). We know that law is everywhere (Twining, 2000: 1) as a social phenomenon, based on cultural foundations (Chiba, 2002: v), which the dominant positivist approach has unsuccessfully tried to ignore in order to privilege the state and its laws. Studying legal pluralism clearly ‘raises important questions about power’ (Griffiths, 2002: 289) and thus challenges legal centralist perspectives about state law.

While legal uniformity represents a utopian dream of philosophers, it is therefore an exception in social reality. Questions have arisen about where law begins and where it ends, but perhaps these are misleading questions. It is a common daily experience that normative pluralism, the coexistence of different bodies of norms within the same social space, is a fact of life. While we may struggle to understand the elusive and dynamic nature of norms, Twining (2000: 246) suggests that pluralism goes much deeper, so that ‘to understand law and legal ordering, the study of norms is almost never enough.

While the long-awaited first edition of this book was explicitly directed at a specific student readership, it attracted much attention worldwide as a pioneering model of global legal analysis. This revised second edition ventures further beyond the still somewhat exotic ambit of comparative legal education pursued at the School of Oriental and African Studies (SOAS) in the University of London. It places legal pluralism more confidently into the mainstream study of comparative law, addressing some of the serious deficiencies of comparative law and legal theory in a global context.

Having read much of what appeared since 2000 in this fertile but still largely uncultivated field, I feel empowered to write with more clarity about the challenging experience of applying in practice what some writers, particularly Santos (1995), Twining (2000) and Cotterrell (2003), have been suggesting as viable strategies to promote plurality-sensitive, globality-conscious legal theory. There has been growing recognition of the fact that academic activities in the complex fields of legal theory and comparative law remain underdeveloped and still too eurocentric. As Western academics we seem, by our own histories and training, to be too wedded to ways of perceiving and studying law that do not take sufficient account of the culture-specific social embeddedness of legal phenomena in the world. We continue to ignore principles and models of good practice that have been developed elsewhere, particularly in Asia and Africa.