INTRODUCTION
As globalisation accelerates, legal systems no longer operate in silos. International Human Rights laws and corporate norms often intersect, creating opportunities and challenges.
“Legal Pluralism is defined as a situation in which two or more legal systems coexist in the social field.” This definition is much broader than it seems, as we will see that its relevance applies to more than a primitive colonialised nation’s legal system. It reflects the dynamic interaction of globalisation, cultural diversity, and power structures, offering opportunities for inclusivity and challenges for justice and governance.
This blog explores the origins and evolution of legal pluralism, examines its manifestations in a globalised world, and analyses the opportunities and conflicts it creates across jurisdictions. It also delves into how this phenomenon reshapes the understanding and practices of law.
DECODING LEGAL PLURALISM IN A GLOBALIZED WORLD
Legal Pluralism as stated above is a coexistence of more than two legal systems which can include customary, religious, state law or international law. Imagine it as a diverse set of laws that co-exist within one territory. For example, the constitution of India, as the supreme legislation, governs the whole country. But at the same time, there exists constitutions of companies established in India which govern the happenings under the company. The concept of legal pluralism emerged from anthropological studies of the law of the Indigenous people residing in the colonies of European nations.
As already stated, the concept of legal pluralism emerged prominently in colonial settings. The European colonisers brought formal legal systems that coexisted with the Indigenous laws, creating a pluralistic legal system. Much to these colonisers’ dismay, the Indigenous laws were not replaced but reshaped by their superimposition of European legal systems. This was because law, including the primitive Indigenous law, is not static. However, by the end of the colonial era, the legal systems of the colonised nations had adopted the pluralistic feature, which continued to shape its modern governance.
The interested legal thinkers brought two major interpretations in the concept of legal pluralism with time: Juristic Legal pluralism, which originates from colonial settings and its superimposed laws on existing Indigenous laws; and Social Science Legal Pluralism, which is much broader than the former as it recognises the presence of multiple overlapping normative orders such as corporate and customary norms.
First, let us understand the juristic legal pluralism. As research done on legal pluralism was initially limited to interactions between formal state law (imposed by the coloniser) and Indigenous or customary laws, it focused on the superimposition of one codified (or ‘better’) law on other uncodified (or ‘primitive’) laws. This whole study came to be known as the ‘classical legal pluralism.’
Later, legal anthropologists began to apply and examine pluralistic legal structures within modern industrial nations. This came to be known as ‘new legal pluralism.’ Working on the same principles as the latest version of legal pluralism, it now includes interactions between global norms (e.g., international human rights and international trade laws) and state laws leading to the social science interpretation of legal pluralism. To understand this let us take the example of how every UN member state is bound by the Universal Declaration of Human Rights, even the advanced industrial nations. By this, we can safely conclude that globalisation has made way for applications of the concept of legal pluralism with a broader scope.
This however also highlights some tensions between global laws’ authority and the state’s autonomy. Globalisation challenges the traditional model of a united national legal order as the emergence of international and transnational norms by organisations by the European Union and the UN deeply influences the national legal systems.
Moreover, in this globalised world, there are various actors beyond the state such as international organisations such as WTO, World Bank, and IMF that influence national legal systems, often with quasi-legislative powers; NGOs like Amnesty International, Human Rights Watch; and private entities such as Multi-national Companies that create norms with biding transnational force. As these entities make more and more laws with binding force that even in some instances these entities influence the national policies, this in the long term creates a tussle between the state’s autonomy and other actors.
CHALLENGES, COMPLEXITIES, AND CONFLICTS
So far, we have observed that the majority, if not all, of the states have a degree of legal pluralism. And of course, with such nuanced systematic arrangements comes its own set of challenges and conflicts.
In any pluralistic legal system, there are some obvious challenges, majorly emerging from the misconception that the state is a monolithic entity with unified legal authority, ignoring the association of diverse groups contributing to a broader legal identity. If we look at any nation, we find that there are customary laws, business laws, usages and so on, existing within a single constitution. Centralised legal systems often marginalise or de-legitimise customary laws, framing them as primitive or outdated. The state’s domination over other normative orders leads to resistance or subsequent adaptation by Indigenous laws, creating a dialectical relationship.
Nonetheless, the existence of pluralistic systems or the coexistence of multiple legal systems can undermine the coherence of state authority, leading to tensions between formal and other legal systems to an extent. This happens as the transnational laws and global legal systems increasingly challenge the state’s sovereignty, further raising complex questions about applicable law on a particular dispute. An example of this would be the transnational corporations often bypass national legal systems using lex mercatoria or private arbitration. The principle of democratic self-determination or laws made by the people is undermined by transnational actors creating binding laws without public authorisation.
Apart from all the above-mentioned challenges, globalisation offers its own two distinct ones. Multiple overlapping legal systems create confusion, inconsistencies, and difficulties in dispute resolution, undermining the single most important function of the legal system at the end. Conflict between different legal systems under legal pluralism is another challenge. For instance, human rights law serves as a transnational legal force but can clash with national legal principles and sovereignty.
Concisely, the challenges arise from theoretical misconceptions; tussling between state and other entities; and increasing globalisation and overlapping of legal systems due to it.
OPPORTUNISTIC OUTLOOK AS AN OPTION
While legal pluralism has challenges and complexities, we cannot forgo the opportunities it holds. By not looking beyond the complexities arising under legal pluralism, we ignore the fact that it enables legal systems to accommodate the complex realities of the globalised world.
First, we should recognise the existence of legal pluralism enabling the inclusion of diverse cultural and legal norms within a single legal framework and second, we should recognise customary and Indigenous laws that respect the legal and cultural diversity and strengthen the legitimacy of the legal system.
‘Local solutions to local pluralism through context-sensitive’ approaches that resonate with local populations rather than centralised state laws or international laws can eradicate the possible confusion in the dispute resolution process is also a solution.
But to tackle common issues, a shared legal meta-language like concepts of fairness and human rights enables communication across diverse legal systems should be used. These legal meta-languages are now increasingly used in guiding transnational legal interactions in the era of globalisation.
Legislators can also take certain steps to reduce the degree of complexities arising out of legal pluralism. This includes integrating democratic principles into fragmented transnational lawmaking processes and balancing local customs, state sovereignty and global norms to build and maintain the legitimacy of law or the legal system.
Finally, a universal code of legality provides a foundation for fair, inclusive and adaptable legal frameworks in a globalised pluralistic world as certain areas like internet regulation, environment laws and biotechnology demonstrate challenges where national legislations fail and legal pluralism prevails.
All these opportunities and solutions would lead to unfolding new potentials of legal pluralism.
CONCLUSION
Legal pluralism, with its coexistence of multiple legal systems, reflects the complexities and interconnectedness of a globalised world. While it poses significant challenges, such as jurisdictional conflicts, marginalisation of Indigenous norms, and the erosion of state sovereignty, it also presents unparalleled opportunities for inclusivity and adaptability. By recognising and integrating diverse cultural, customary, and international legal norms, legal pluralism fosters a more inclusive approach to governance and justice.
The complexities of legal pluralism demand innovative solutions, such as developing shared legal meta-languages and implementing democratic principles in transnational lawmaking. These measures can bridge gaps between local customs, state laws, and global norms, ensuring the legitimacy and coherence of pluralistic legal systems. Moreover, context-sensitive approaches, which prioritise local solutions, can resolve disputes effectively while respecting the cultural and legal diversity of populations.
In an era of globalization, the adaptability of legal pluralism offers a framework to address complex, borderless issues like environmental protection, internet governance, and human rights. Embracing legal pluralism as an evolving concept is essential to creating fair and inclusive legal systems that balance diversity with unity, ensuring justice and governance in an increasingly interconnected world.
Author(s) Name: Vaiddhriti Narayan Singh (Hidayatullah National Law University, Raipur)
