As I was reading up on comparative law and culture, I was wondering about the possible impact of legal pluralism on comparative law. Legal pluralism is a theory used by social scientists. Its basic idea is that several legal systems usually coexist and intermingle within one legal entity. Historically, legal pluralism can be traced back to the middle ages where there was a constant conflict between state law and church law. Another application for legal pluralism came with colonialism and the imposition of western law onto indigenous law. More recently, a movement called global legal pluralism has applied legal pluralism theory to legal issues that arise from globalization. Global legal pluralism might have an impact on comparative law in two areas: (1) the grouping of legal systems into legal families and (2) the definition of mixed legal systems.
In global legal pluralism, the definition of law is very broad and encompasses not only the classic law made by the government for its citizens, but any normative commitment. This means that also international law, non-state law and social norms are included under the definition of law. Here comes the connection to the law and culture movement which stipulates that legal systems should be considered in their entirety, i.e. including cultural norms and traditions. And this leads us to a relatively recent method for defining legal families: the focus on traditions instead of legal scope or theory. Comparative law used to only consider law made by a government authority. As a result, western legal systems were over represented, whereas indigenous systems that usually rely on social norms were mostly ignored. The application of legal pluralism to comparative law classification could change this picture and eventually place indigenous legal systems on an equal footing with the so far predominantly studied western legal systems.
Similarly, legal pluralism has an impact on how mixed legal systems are defined. Traditionally, in comparative law, only legal systems that combined elements of both common and civil law were considered a mixed legal system. With the above-mentioned broader definition of law, any heterogeneous legal system that includes elements of other legal traditions would fall under the category of mixed legal systems. Given that various streams of legal thought and tradition usually make up a legal system, any legal system could then be considered a mixed legal system. Such a conclusion would render the whole category of mixed legal systems moot.
It remains to be seen whether and how exactly global legal pluralism will find its way into comparative law. The above discussion illustrates that a blind adaptation of pluralist principles by comparative lawyers does not make sense and therefore should be avoided. In general, however, global legal pluralism may be the key that brings comparative law out of its existential crisis by opening up new ways to examine and incorporate novel aspects of law that have become important over the years as the legal horizon has broadened.
- Paul Schiff Berman, Global Legal Pluralsim, 80 SO CAL L REV. 1155 (2007).
- PAUL SCHIFF BERMAN, GLOBAL LEGAL PLURALISM: A JURISPRUDENCE OF LAW BEYOND BORDERS (2012).
- Ralf Michaels, Global Legal Pluralism, 5 ANNUAL REV. OF L & SOC SCIENCES 243 (2009).
- Brian Z. Tamanaha, Understanding Legal Pluralism: Past to Present, Local to Global, 30 SYDNEY L. REV. 365 (2008).