Legal pluralism

This article is about the concept of legal pluralism. For other uses of the term, see Pluralism (disambiguation).

Legal pluralism is the existence of multiple legal systems within one (human) population and/or geographic area. Plural legal systems are particularly prevalent in former colonies, where the law of a former colonial authority may exist alongside more traditional legal systems (cf. customary law).

History

When these systems developed, the idea was that certain issues (e.g., commercial transactions) would be covered by colonial law, while other issues (e.g., family and marriage) would be covered by traditional law.[1] Over time, these distinctions tended to break down and individuals would choose to bring their legal claims under the system that they thought would offer them the best advantage.

Current practice

Legal pluralism also occurs when different laws govern different groups within a country. For example, in India and Tanzania, there are special Islamic courts that address concerns in Muslim communities by following Islamic law principles. Secular courts deal with the issues of other communities.

Modern Western legal systems can also be pluralistic[2] so it is misleading to discuss legal pluralism only in relation to non-Western legal systems. Legal pluralism may even be found in settings that might initially appear legally homogenous. For example, there are dual ideologies of law within courthouses in the USA, with the formal ideology of law as it is written existing alongside the informal ideology of law as it is used.[3] The discussion on the internal and external plurality of legal systems is called sociology of law.

Sources of Islamic law include the Koran, Sunnah, and Ijma, whereas most modern Western nation-states take the basis of their legal system from the Christian superpowers of old (i.e. Britain, France, etc.). This is also why moral laws found in the Bible have actually been made full-fledged laws, with the initial grundnorm set far back in legal history, hence fulfilling the priority of both the positivists and the naturalists.

Legal pluralism also exists to an extent in societies where the legal systems of the indigenous population have been given some recognition. In Australia, for example, the Mabo decision gave recognition to native title and thus elements of traditional Aboriginal law. Elements of traditional aboriginal criminal law have also been recognised, especially in sentencing. This has, in effect, set up two parallel sentencing systems. Another example is the Philippines where the customary ways of indigenous peoples in the Cordilleras are recognized by the Philippine government; and, in Kalinga, Bodong is the means used by the people to settle disputes: it had been very effective for them, and is still widely practiced.

There is some concern that traditional legal systems and Muslim legal systems fail to promote women's rights. As a consequence, members of the Committee on the Elimination of Discrimination against Women (CEDAW) have called for a unification of legal systems within countries.

See also

References

  1. ↑ Griffiths, Anne (November 1996). "Legal Pluralism in Africa: The Role of Gender and Women's Access to Law". PoLAR 19 (2): 93–108. doi:10.1525/pol.1996.19.2.93.
  2. ↑ See Griffiths, John (1986) "What is Legal Pluralism" in Journal of Legal Pluralism 24: 1-55.
  3. ↑ Merry, Sally (May 1986). "Everyday Understandings of the Law in Working-class America". American Ethnologist 13 (2): 253–270. doi:10.1525/ae.1986.13.2.02a00040.

Further reading

External links

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