19. See Tamanaha, op. cit. cit., note 3, p. 210: “If legal pluralists accepted the standard conception of law as State law, they would be free to examine in each individual case separately whether, when and in what way State law (this legal apparatus) actually participates in the maintenance of the normative order of society. The critical potential of this approach is much greater” [footnotes omitted]. In a subsequent communication with the authors, Professor Tamanaha notes that it was not his intention to assert the priority of State law, but rather to point out that the pluralists of the social sciences themselves implicitly accept this priority. As systems evolved, the idea was that some issues (such as commercial transactions) would be covered by colonial law and other issues (family and marriage) by traditional law. [1] Over time, these distinctions have tended to collapse, and individuals have chosen to place their legal claims within the system that they believe would provide them with the greatest benefit. 41. See Merry, S.E., “Anthropology, Law, and Transitional Processes” (1992) 21 Annual Review of Anthropology 357 at 358CrossRefGoogle Scholar, and de Sousa Santos, B., “Law: A Map of Misreading. Towards a Postmodern Conception of Law” (1987) 14 Journal of Law and Society 279 at 298CrossRefGoogle Scholar. In an attempt to deliver a postmodern reconception of law, de Sousa Santos argues that legal pluralism plays a crucial role.

However, the legal pluralism to which he refers is not the traditional version of legal anthropologists, “in which legal systems are understood as distinct entities coexisting in the same political space, but the conception of different legal spaces that overlap, permeate and blend in our minds as well as in our actions, on the occasion of qualitative leaps or profound crises in our life courses as well as in the boring Daily meeting routine without incident. Life” [emphasis added]. Globalization increases legal pluralism in two ways. First, it promotes the circulation of legal forms and practices from one nation-State to another. Constitutions, codes and legal institutions are often transplanted, as in the earlier period of colonialism. These transplants introduce codes and procedures different from those of the host society, often with the aim of reforming them. Colonial transplants have been characteristically formulated as promoting civilization; mid-twentieth century transplants as modernizing institutions; and those of the late twentieth century as a promotion of democracy and the rule of law. The modern African state, with its state and legal institutions, is a product of colonization. In most parts of Africa, there was relatively little immigration from colonizing countries, and indigenous inhabitants everywhere remained in the majority. Nevertheless, the colonial powers established systems of government similar to those of the metropolises, except that they did not provide for public participation in government. English common law was imported into the British colonies. In their colonies, codes largely identical to those of France and Portugal were issued.

(Allott 1960, 1970; see also: Law: Imposition, Reception, and Colonial.) Roseveare (2013) defines legal pluralism as “the existence of multiple sources of law (governmental and non-state) within the same geographical area. Although the rule of law is often presented as a law developed and administered by the state, a growing body of evidence suggests that the establishment of a range of legal and quasi-legal mechanisms of security and justice creates choices for individuals, communities, and even the state itself” (p. 39). The UN (2011a, pp. 67-68) identifies three main types of legal pluralism: Within state law, another type of legal pluralism has been formed. State legal systems recognize African indigenous customary and religious law systems. “Recognition” here refers to the policy in which the legal systems of the State treat the institutions or norms of customary and religious law as parts of State law, give effect to them and apply them in the same manner as the institutions and norms of the received law. In some British colonies, a policy of recognition was pursued from the beginning and eventually adopted everywhere. This is not a problem of the past. In the former colonies, most courts still apply customary law to many disputes involving rural populations. Parts of customary law are thus incorporated into State law.

This is a case of constructed legal pluralism. However, the application of customary law concerns only substantive rules; State court procedures are always designed by the state. Thus, “traditional” substantive law is applied in proceedings under national law, which has made significant changes to the substantive rules. In fact, two types of customary law coexist: local law, as developed and applied by the local population itself; and “customary law” or “traditional law” as applied by State institutions. These two legal forms are not completely independent, but are complex in relation to each other and to State law. Dutch authors who wrote about colonial law, such as Van Vollenhoven, were well aware of what was happening (Holleman 1981). The term adat law was developed precisely to indicate the difference with adat – the Malay term for local customs in the broadest sense of the word, way of life. Today, the term Adat law is generally used for both state-defined and local versions of common law. 25. It should be noted, however, that the meaning of the concept of `rule of law` has changed.

It is not a question of whether, for example, judicial officials invoke a supposedly external norm to legitimize their actions; rather, it is their need to address directly the notions of legitimacy and justice of those for whom they claim to exercise their authority. The law that imposes its rule is separate neither from the “ruler” nor from the “governed”. This point is discussed in detail in Part 2 of this essay. In today`s world, corporations typically have more than one legal system. Legal pluralism refers to situations of legal coexistence in a single social sphere. Originally described in colonial situations in which the colonial power placed a European legal system above an existing indigenous system, legal pluralism is now understood as a fundamental feature of all legal systems. Advanced capitalist states, as well as colonial and postcolonial states, have several legal systems. Some are rooted in semi-autonomous social spheres that are self-regulating, but are also subject to the regulation of society as a whole, such as commercial networks (Moore 1978) or criminal communities. Many institutions, such as schools and businesses, are developing forms of private administration. Informal but rule-based relationships are characteristic of families, communities and voluntary organizations, although there is considerable debate as to whether such forms of normative order should be called law. Some legal systems openly combine several legal interests from different origins. For example, some ancient and modern societies had a system of “personal law” in which the emergence of certain rules depended on the religious or tribal identity of the parties (see Legal Pluralism; Volks-, Indigen- und Customsrecht).