Unit 3: Legal Pluralism.
In this unit we will focus on Chapter 3 of your
textbook. The purpose of this unit is to provide a
basic introduction to the concept of legal
pluralism as a socio-legal theory and compares
elements to those of some conventional
jurisprudential theories of law.
Learning Outcomes
• Discuss and differentiate between the dominant jurisprudential theories of law;
• Demonstrate an understanding of the socio-legal theories of law and the place of legal pluralism
in these theories.
What is Theory ( in law)?
• Theory, in our sense, is a set of
principles/assumptions that underpin an
outlook on a particular discipline or
belief.
• These principles/assumption tend to
explain a certain phenomenon.
• Therefore, when we speak of theory in
this unit we are referring to an analysis of
law at the highest level of abstraction.
• We use this phrase to denote theoretical
enquiries about law ‘as such’ that extend
beyond the boundaries of law in practice.
• We seek to make obvious the often
unspoken that law is a human endeavour
and is therefore influenced and enacted
in the way in which humans see it at
particular points in human history.
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The different theories in law.
1. Jurisprudential Theories of Law.
• Jurisprudential theories focus on legal sources, institutions and officials as determinants of what the
law is. They emphasise the logical coherence of a legal system. Philosophically, these theories are
concerned with what the law ‘ought’ to be. The focus is more abstract and hypothetical and less
descriptive of the implications of law.
2. Socio-legal Theories of Law.
• Socio-legal theories are more sociological in their outlook. They focus on what ordinary people do as
both adherents and non-adherents of the law. The legal order is viewed in relation to social forces.
These theories seek to understand the law in practice as opposed to the law in the books. Value is
placed on other norms rather than viewing the state law as the normative centre.
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Jurisprudential Theories.
• The main jurisprudential theories of
law in South Africa are legal positivism
and state centralism.
• Legal positivism : law is based on
tangible sources, such as legislation
and court precedents, rather than
morality or ethics.
• In South Africa, laws are considered
valid if enacted by the legislature or
courts, regardless of public approval,
as long as people generally obey them.
• Legal rules do not require personal
endorsement from society, and
officials don’t need social consensus,
differentiating law from moral
standards.
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Positivism and the rule of recognition.
• This theory posits the idea that the source of law determines its status i.e. legislation
and court judgements. Once the law has been officially accepted as a rule, it need
not be socially accepted to be considered law.
• With reference to African customary law in South Africa, it could be said that
customary law is a legitimate source of law as it is not only recognised in the
Constitution and provided for in legislation, it has also been recognised and
applied in court judgements.
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Positivism and the rule of law.
• The central idea is that law is supreme, and no state action is legitimate unless provided for by law.
• The idea of the supremacy/primacy of the law and the validation of state action by the law is referred
to as ‘the rule of law’.
• The operation of the rule of law requires the following:
➢ Separation of powers between the three arms of state;
➢ Equality before the law;
➢ The right to a fair hearing (as well as a presumption of innocence until being proven guilty); and
➢ Legality.
• By legality, we are referring to the clarity, certainty, precision, specificity, non-arbitrariness and
predictability of the law.
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Legal centralism.
• The main claim of legal centralism is that law is
and should be the law of the state, uniform for all
persons, exclusive of all other law and
administered by a single set of state institutions.
• Only the state determines and legitimizes what
law is.
• Further to this, only the state has a right to
administer and enforce the law. the logic that
underpins this theory is the belief that the state
mostly operates in a manner that conforms to
equality and neutrality.
Socio-legal theories of law.
• There are many socio-legal theories that
view the law in relation to society and its
legal actors.
• As stated above, there are several socio-
legal theories that cannot all be covered in
this module.
• For our purposes we will only cover two
theories.
➢ Living Law and Law as a Competitive
Social Field.
➢ Legal Pluralism.
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Living Law and Law as a Competitive Social Field.
• A theory that is relevant for our context is the notion of ‘living law’. Ehrlich theorised a
European notion of ‘living law’.
• He stated that positive legal propositions cannot capture all common law because people’s
practices evolve. This would then result in the law being unable to keep up with these
changes. He concluded that law can only be determined by the direct observation of life.
• From Ehrlich’s notion of ‘living law’, we can see clear parallels between it and ‘living
customary law’ as defined and discussed in the preceding Units of Study.
• Bourdieu’s theory of law as a competitive social field is another theory worthy of
discussion. He describes ‘the juridical field’ as a ‘site of competition for the monopoly of
the right to determine law’.
• His argument is that only those ‘on the inside’ truly know what the law is and what it
requires i.e. the law is shrouded in mystery for those on the outside. Ordinary
people/citizens may try to use the law to their advantage but can never knowing what it
fully entails. This makes it difficult for them to challenge what they may view as being
unfair. This results in a situation where only the powerful insiders have an advantage in
determining social value based on law.
• African customary law’s operation – under this theory – would depend on its
institutionalisation. If it is not ‘law’ it is merely forms a naïve idea of law from outsiders, it
would therefore hold no power in determining justice.
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Legal pluralism.
• The concept of legal pluralism seeks to promote the decentralisation
of state law. Unlike legal centralism, it seeks to draw attention to and
understand the multiple legal systems that exist officially and
unofficially within a single legal order. The idea is that the legal
systems, official or not, should have sufficient authority to direct
people’s behaviour (i.e. they must have the ‘force of law’). Legal
pluralism may be conceptualised as ‘weak’ or ‘deep’ legal pluralism.
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Weak Legal Pluralism.
• This form of legal pluralism refers to the recognition and regulation by the state of
a number of legal orders.
• These legal orders are internal to a unitary state system. The state is still central in
determining law. Non-state systems are therefore, in a strict sense, not law.
• The existence of African customary law amongst other systems and its inclusion
within a broader system of law in South Africa may result in it being seen as
existing under a weak form of legal pluralism.
• This is primarily because the law, although recognised, is mostly regulated by the
state.
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Deep Legal Pluralism.
• This is a stronger (or deeper) form of pluralism as it recognizes the existence of multiple legal
orders even without them belonging to a single state system.
• This means that contradictory norms may co-exist in one country and people may – at times –
pick and choose which legal system they would rather follow. This may result in a situation where
the state plays a subordinate role to non-state in the regulation of law.
• It could be argued that in the South African context, African customary law exists under a deep
legal pluralism.
• This argument is supported by the fact that state institutions only provide for the recognition of
customary law. Its practice, enforcement and development is mostly left up to its adherents.
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In this unit we have explored African
Thank You! customary law under two major theories. We
saw its conceptualisation and how it could
operate under the respective theories.