Legal Pluralism in Conflict

Coping with Cultural Diversity in Law

Prakash Shah

• Publisher: Routledge-Cavendish
• Year: 2016
• ISBN:
  9781135308780
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Legal Pluralism in Conflict offers a new theoretical perspective for conceptualising and analysing the relationship between ethnic minority laws and the official legal order.

Examining the limits of liberal legal thought in light of a contemporary plurality of ethnic identifications and religious beliefs, Prakash Shah takes up the case for a 'legal pluralism' that views ethnic minority laws in interaction with the official British legal order. This form of legal pluralism is not, however, without conflict. This book pursues a series of case studies that critically consider why and how state laws marginalise ethnic minority legal orders. Legal Pluralism in Conflict contains discussions of the recognition of polygamous marriages, homicide, the expertise provided in immigration cases and the legal discourse of nationality. It is in this engagement with some of the most challenging issues posed by the diverse character of modern society that its author sets out an alternative course for ethnic minority legal studies.

Legal Pluralism in Conflict will be invaluable to students and researchers concerned with law's relationship to and treatment of ethnic and religious diversity, as well as to those with wider interests in the limits and possibilities of political pluralism.

Chapter 1
Introduction: Legal Pluralism as a Tool for Ethnic Minority Studies

According to the British Census of 2001, people who belong to an ethnic minority are now said to have risen to some 8% of the UK’s population, and to some 9% of England’s population. The magnitude and growing importance of these people, who are themselves from diverse origins in Africa, Asia, the Caribbean and Latin America (and a considerable number of mixed-origin people), has given rise to an appreciable scholarship on their legal position(s) (in particular, Pearl 1986, Poulter 1986, 1990, 1998, Bradney 1993, Hamilton 1995, Pearl and Menski 1998, Jones and Welhengama 2000), and this book presents a series of critical essays as an addition to the growing field of ethnic minority legal studies in Britain. It is therefore crucially concerned with the problem of cultural diversity and law, and the question of the fate of law in plural societies, which is an issue that arguably reaches worldwide proportions (Welhengama 2000, Ghai 2000, UNDP 2004), although our focus here remains fixed on Britain.

In using the term ‘cultural diversity’, I follow Bhikhu Parekh (2000a: 3–4) in his concern to address what he refers to as ‘communal diversity’, as distinct from ‘perspectival diversity’ which is that deriving from groups that dissent from prevailing ideologies such as feminists, or ‘subcultural diversity’ which is that deriving from groups that broadly share the values of the dominant society but entertain or evolve their own beliefs, practices or lifestyles such as gays and lesbians. This communal diversity exists when there are ‘several self-conscious and more or less well organised communities entertaining and living by their own different systems of beliefs and practices’ (Parekh 2000a: 3). Other writers (for example, Cohen 1974, Ballard 1976) have tended to refer to such communities as ‘ethnic’ groups, although the concept of ethnicity signifies not only these common cultural elements, but also emphasizes boundaries between one group sharing these and its ‘others’, as well as often having politicised connotations.

Given the picture derived by recent Censuses, it continues to be ever more critical to rise up to the theoretical challenges that force us to reevaluate the concept of law in a culturally diverse, plural society. This requires us to examine the direction in which this modern society can make the transition from a concept of law that is regarded as homogeneous despite prevailing diversities, to a postmodern conception that is reflective of its cultural diversity.

1.1 Legal pluralism

This book relies on the basic theoretical propositions of legal pluralism. While there is not one but several theories and theorists of legal pluralism (see Griffiths, J 1986, Merry 1988, Griffiths, A 2002 for overviews), I have tended to rely mainly on the work of Masaji Chiba (1986, 1989, 1998) and Werner Menski (2000a). This is because both scholars take a broad perspective of comparative law which includes consideration of non-Western, as well as Western jurisprudence. Their theoretical perspectives have therefore been more thoroughly tested for the demands of an intercultural world.¹

Legal pluralists argue for a more or less holistic conception of ‘law’, while tending to be critical of the position in Western ‘model jurisprudence’ (Chiba 1986: 1) in which a monistic conception of law has dominated. This latter concept of law was once a political claim but it has penetrated legal theory to the degree that ‘law’ is generally regarded, presented and taught as that law which is made and recognised by the state (Santos 2002: 89–90). While Western in origin the idea has also dominated legal thinking in many parts of the world through the export of legal modernity by colonialism or by voluntary adoption in an effort by ruling elites to ‘keep up’ with Western trends. Thus, the West may be the home of legal modernism, but it is ‘now a state of mind rather than a geographical region’ (Kakar 1982: 5). In company with other legal pluralists I do not accept that law should or can be reductively presented in such a narrow way. Not only is it conceptually inadequate, it is also experientially unsustainable, as law throughout the world is found to contain multiple founding elements. Modern jurisprudence is also found to be repressive of other traditions, within and outside the West (Glenn 2000: 50–51), and their contributions to legal thinking.

So how can law be conceptualised in a more accurate and validating sense, one that accounts for its inherent plurality? Several writers have proposed a threefold structure of law, and it might be the case that we are looking at a kind of emerging constitutive triad among the basic law-founding elements. Chiba earlier (1986, 1989: 131–40) saw law as constituted of ‘official law’, ‘unofficial law’ and ‘legal postulates’. Each of these concepts is used in preference to the triad identified by Chiba (1989: 134–38) as already existing within Western conceptions of law as indicated by the terms ‘positive law’, ‘customary law’ and ‘natural law’, because he finds them too linked to the Western tradition to be of value in a multicultural world.

Official law then corresponds to that law which is made by the state as well as that which does not originate in the state but is nevertheless sanctioned by it (Chiba 1989: 139). Unofficial law is that which ‘is not officially sanctioned but which is in practice sanctioned by the general consensus of a certain circle of people whether functioning in correlation with official law, or complementing, opposing, modifying or even undermining it’ (Chiba 1989: 136). Official and unofficial law were later classified by Chiba (1989: 177–80) as the first of the ‘three dichotomies of law in pluralism’.

Legal postulates in turn are defined as ‘the system of values and ideals specifically relevant to both official and unofficial law in founding, justifying and orienting the latter’ (Chiba 1989: 139). Legal postulates therefore consist of established legal ideas (natural law, equity, justice, dharma, sharia, and so on); religious precepts; social and cultural postulates related to the fundamental social structure (such as the caste system, stratification, the system of lineal descent, clan unity, exogamy, individualism or the traditional philosophy of national character, that is national philosophy); and political ideologies, which are often closely connected with economic policies (Chiba 1989: 139–40). Later, Chiba (1989: 178) added ‘legal rules’ to his scheme. They are defined as ‘formal verbal expressions of particular legal regulations to designate specified patterns of behaviour’. These rules are easier to isolate than legal postulates but they coexist together and interact, and possibly also conflict in some circumstances leading to the annihilation of one or the other. Legal postulates and legal rules therefore constitute the second of Chiba’s ‘three dichotomies’.

Chiba (1986: 7–8) also drew a distinction between indigenous and received law, which became the third of his ‘three dichotomies’. Both were defined in relation to his work on Asian legal systems. Thus, he defines the former broadly as being that law which ‘originated in the native culture of a people’ and narrowly as that which was already in existence prior to contact with the West. In the latter definition the indigenous law would already be a mixture of multiple influences as in the presence of Islamic law and its combination with pre-existing laws in South Asia prior to British intervention. Received law was defined as that law which is accepted or imposed upon contact with the West. More recently, Chiba refers to ‘transplanted law’ in place of received law, the former being described as that ‘which was received from foreign cultures or imposed by foreign countries’ (1998: 241), but, even more interestingly, as ‘law transplanted by a people from a foreign culture’ (1989: 179). In our context it will be relevant to note that a process of legal transplantation has been occurring in Britain and throughout Europe with the onset of large-scale immigration. This process can be regarded as a sort of ‘reverse colonisation’ (Menski 1997a: 67) or ‘globalisation from below’ (Bryceson and Vuorela 2002: 7), or as another sort of ‘incoming tide’ (Lord Denning in Bulmer v Bollinger [1974] 2 All ER 1226),² having multiple legal influences, although largely suppressed by the ideology of legal monism prevalent in Western countries. Not only that: the parallel process of migrants and ethnic minorities being exposed to British or European legal culture can also be regarded as a process of transplantation leading to the further ‘hybridisation’ of their lived legal cultures. Such processes of ‘transplantation’ have further important implications that I will need to flesh out further below and throughout the rest of this book.

Meanwhile, Chiba talks about other processes that also have implications for our study. In particular, he speaks (1998: 233–34) of ‘trans-state law’ in place of his earlier references to ‘international law’ or ‘world law’. The international law or world law concepts may be construed as being quite state-centred since it is states that are generally credited with making or unmaking international agreements. While Chiba admits of such law ‘by official treaty’, as manifested in the influence of EU law across European countries, he also regards ‘unofficial agreements’ as coming within his definition of trans-state law. Recognition of this legal influence is vital for us too as it can help to account for the creation and maintenance of ‘transnational’ (Bryceson and Vuorela 2002) or ‘translocal’ (Ballard 2001b) communities, with their own forms of trans-state law that also carry legal implications for the societies through which they navigate. Turkish and Kurdish communities, for example, are spread throughout Europe nowadays and they may marry, trade or chat online by ‘unofficial agreements’ as they actively seek to retain and renew connections with their ‘home’ areas, and to make new ones. Indeed, Chiba (1989: 139) had earlier defined unofficial law in a broad, inclusive sense as that ‘which is authorised by the general consensus of a certain circle of people, whether of a country or within or beyond it’ (emphasis added). This arguably takes into account the trans-state nature of the unofficial level of law.

Chiba’s initial triad is mirrored in Menski’s (2000a) enunciation of three ‘law founding elements’ of ‘state’, ‘society’ and ‘religion or ideology’ in his detailed study of Asian and African legal systems within a global context. In fact, he argues that those elements can also be applied to the legal study of Western societies and thus constitute a model of potentially universal application. That state law should figure in any account of ‘law’ is hardly contentious, but Menski’s study shows very importantly that states in the Asian and African traditions were not, at least in premodern times, conceptualised as being the Austinian sovereign or the Napoleonic law maker, as a subtle balance operated among the three law founding elements. Whenever the state may be in danger of being hijacked by over-ambitious rulers, the other two elements come to rein it in by asserting themselves. Therefore, it appears that Asian and African legal systems have in-built accountability mechanisms premised on non-positivist ideologies. Thus it was that Islamic scholars attempted to control their states by critical insistence on reference back to religious elements of law (Menski 2000a: 238–47); and the Chinese experiment with ‘legalism’, China’s home-grown variant of positivism, supported by the Ch’in dynasty between 221 and 206 BC, collapsed through the reassertion of Confucian self-control mechanisms (Menski 2000a: 469–77). Were similar reasons responsible for convincing Indians to rid themselves of their British rulers?

Thus, for Asian and African legal systems, if not for other components of the world’s legal cultures, there is a quite distinct approach to the place of state law. Additionally, there is a strong emphasis on self-regulating customary laws (the ‘society’ element), on the one hand, and religion as a preferred means of assisting self-control, on the other. For our immediate purposes it is critical to study the interaction between Afro-Asian diasporas, whose legal baggage has a markedly sceptical attitude to the capacity and legitimacy of significant intervention by the state, and the state-centred, or ‘legal centralist’ (Griffiths 1986: 3) assumptions of the British legal system. Positivist assumptions of law makers and enforcers will be read, if not necessarily articulated, as inappropriate interventions in societies premised on the principle of self-regulation. This mismatch leads, on the one hand, to the constant reassertion of ethnic minority laws, but can, on the other hand, often lead to the development of conflict situations on which this book has much to say. I am tempted to read Gandhi, who belonged to an earlier generation of the Indian diaspora, in this light, given his excoriating critique of the British state system as frustrating traditional modes of individual and societal self-regulation (see Parekh 1989: 110–41).

As with Menski (2000a), who sees law as far from being autonomous but intimately connected with other culture-specific elements within society, Chiba too is concerned to underline that law must be studied as an aspect of the total culture of a people. But if ‘law’ is characterised by the co-existence of diverse components, then how is it that a whole legal order, or what Chiba (1989: 162) calls a ‘socio-legal entity’, can hold itself together? He (1989: 140) accords some importance to the legal postulate of a country as it is that element that is:

… the foundation of its official and unofficial law which it also justifies and orients. It thus includes not only consonance or indifference but also, to a limited extent, nonconformity, opposition, conflict or struggle among laws, because each legal postulate underlies each system of official or unofficial law, which it may supplement, oppose, modify or even undermine. A minimum integration should be preserved within the whole structure of law of a country, in order to maintain the legitimacy of the official law, especially state law.

In a subtle way, therefore, Chiba indicates what Menski too finds about the balance among the different law founding elements. Primarily with reference to the transplantation of foreign, Western laws into the Japanese legal system in its effort to modernise, he attempts to identify how it was that the ‘cultural crisis’ (Chiba 1989: 155) that this process precipitated was managed by the Japanese legal order. The success or failure of reception of foreign legal elements, consistent with the maintenance of the Japanese cultural identity, Chiba argues, is dependent on the basic legal postulate which enables a people to maintain its cultural identity. He calls this the ‘identity postulate of indigenous law’ (Chiba 1989: 157). ‘It is an attribute which is indispensable to every system of law which wants to remain culturally independent’ (Chiba 1989: 157), and it is what guides people in choosing how to reformulate indigenous law and transplanted foreign law in order to maintain their cultural identity. However, the fact of this mixture in the history of legal systems explains his choice of the new term, the ‘identity postulate of a legal culture’ (Chiba 1989: 166–67). Crucially for us, he points out that competition between different postulates, whether in space or in theory, is unavoidable, and that these postulates must reach accommodation or integration under a more inclusive one. ‘This means that each people must not only cherish their own identity postulate of indigenous law, but also they must constantly endeavour to reformulate its content, so that it can maintain itself in this competition as circumstances change’ (Chiba 1989: 157). Pierre Legrand’s (1997: 45n) recommendation to comparatists to elucidate what he calls ‘para-mentalités’ that could account for differences of legal culture within the same jurisdiction seems to be leading us in the same direction. Current discussions about the reformulation of ‘Britishness’ (Parekh 2000b, Phillips 2004) could also be read in this light.

I identified above two directions of legal transplantation in the context of my study of the interaction between ethnic minorities’ unofficial laws and the official British legal system. What Chiba indicates here with reference to the Japanese experience of transplanted, foreign law could also apply to both the British legal system and Britain’s ethnic minorities. The major qualification to be made here is that in the Japanese case, ‘Westernisation’ of the Japanese legal system or, rather, the ‘Japanisation’ of Western legal codes was a strategic move to modernise, initially in the face of pressure exerted by Western states for concessions to be granted to their nationals but which persisted in other senses into the aftermath of the Second World War. The circumstances were therefore somewhat different from those prevailing today in Britain. However, it can be argued that the basic lessons of legal transplantation, and what Chiba subtly indicates about the capacity to adjust to new circumstances, should be one of the key tests for the British legal system’s adjustment to the presence of diasporic legal cultures, as well as for the transplantation of British legal ideas and models among members of these groups. Indeed, parallel issues are now arising in Japan, which also faces the presence of diasporic minorities.

But if much of the capacity for coping and adjusting is to depend on the identity postulates of law then it should be asked: What is the identity postulate of the British legal system which faces the inescapable fact of the transplantation of ‘foreign’ legal cultures on the soil over which it seeks to assert territorial jurisdiction? After all, as Chiba (1998: 241) notes, it is the identity postulate that is ‘the integrating principle to re-organise individualised constituents into a truly workable legal pluralism’. I pursue this problem in section 1.3 below, after specification of two of Chiba’s chief theoretical concerns, which can be read as the integrating features of the chapters that follow.

1.2 Legal pluralism in conflict and in subjectivity

As seen above, Chiba maintains that there is a varying interaction between the different elements of legal pluralism, but he has recently noted that scholars have neglected the study of legal pluralism in conflict. He argues (1998: 230):

…the expression ‘law in conflict’ is theoretically a conceptual contradiction, in so far as peace or stability is one of the essential features of law, and t...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Acknowledgments
• Foreword
• 1 Introduction: Legal Pluralism as a Tool for Ethnic Minority Studies
• 2 Ethnic Minority Legal Studies: Towards a Jurisprudence of Difference
• 3 The other Incoming Tide: The Diasporic Challenge to the British Constitutional Order
• 4 Criminal (in)Justice in a Plural Society: South Asians and the English Law on Homicide
• 5 Attitudes to Polygamy in English Law
• 6 Bangladeshi Legal Pluralism and English Law
• 7 Expert opinions on South Asian laws in immigration cases
• 8 Who do we think we are? British nationality in the European context
• Conclusion
• Bibliography
• Index