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Davies, Margaret --- "The Ethos of Pluralism" [2005] SydLawRw 4; (2005) 27(1) Sydney Law Review 87


The Ethos of Pluralism

MARGARET DAVIES[*]

Abstract

The purpose of this article is to highlight a tension within contemporary legal scholarship between the idea of legal monism and the idea of legal pluralism. ‘Legal monism’ refers to the pervasive positivist understanding of law as a unified structure of valid rules and principles contained within a single institutional framework. In contrast, ‘legal pluralism’ recognises multiplicity in legal practice and legal theory. The core idea of the article is that some (though not all) versions of legal pluralism can be of use in the construction of a new understanding of law appropriate to contemporary conditions of cultural and political diversity. The argument for a more pluralistic understanding of law centres on four claims. First, it is possible and useful to think of the pluralistic outlook in legal theory as an ‘ethos’ rather than as a theory with defined boundaries. Second, the traditional emphasis on singularity and totality is no more rational as a theoretical preference than even the most open-ended pluralism. Third, the pluralistic approach to theory is both empirically and normatively preferable to the singular view of law, and is more useful to the demands of a plural society. Fourth, it is possible to think of law — even in its conventional positivist sense — as irreducibly plural, rather than essentially singular and limited.




1. The One and the Many in Legal Scholarship

There are several ways of classifying the various approaches in contemporary legal scholarship. One classification, for instance, could distinguish several schools of thought based on an underlying philosophy or social justice perspective as follows: traditional black-letter legal analysis; law and policy analysis; law and economics; Indigenous legal thought; feminist legal theory; socio-legal studies; and critical and postmodern legal studies. Each of these approaches to legal scholarship is comprised of both analysis of legal doctrine from a distinct perspective and more abstract or theoretical research. While very few scholars would sit comfortably within only one category, such a scheme of classification offers one useful way of generalising the current state of scholarship. Another method of classifying legal scholarship might be to focus on the subject matter rather than the theoretical background of an approach: for instance, we could distinguish between legal theory or philosophy, doctrinal legal analysis and socio-legal scholarship.

Such classifications are useful and valid, although I should add the normal qualifications: no taxonomy is absolute; there are always in-between or crossover approaches; and epistemic classifications tied to a particular discipline very quickly become outdated.

In this article I wish to put aside conventional classifications of legal scholarship and focus on a dichotomy with a long philosophical heritage — the distinction between the One and the Many.[1] Legal scholarship is currently characterised by a division, if not an explicit conflict, between an ethos of singularity or monism and an ethos of pluralism. Monistic conceptions of law as a unified and coherent system are under challenge from pluralistic visions of legal multiplicity. The orthodox jurisprudential, scholarly and practical conception of law is ‘monistic’ in that it depicts law as a single coherent structure of norms derived from a clearly located source — the state. In contrast, pluralistic conceptions of law recognise multiple types of law, emphasise the heterogeneity of narratives constituting the law and identify several origins of law. I will explain monism and pluralism in more detail in the next section of this article.

The division between law as One and law as Many cuts across classifications such as those which I have mentioned above, for it would be superficial to say that those who adhere to the more ‘traditional’ schools of jurisprudence only promote monism, while ‘critical’ legal theorists always promote pluralism. Instead of seeing the division as one between scholars of different persuasions, my argument is rather that scholars are contending within themselves with the struggle between monism and pluralism, in its many manifestations. Put simply, our context is one in which the default ideology of law is rather singular, but contemporary political and social conditions demand a more pluralistic outlook. We can resolve the conflict in a variety of different ways, but my sense is that the issue remains active for many scholars — how can we maintain the integrity of law as a system, while recognising the need for it to be more socially responsive, flexible, culturally inclusive and adaptive to other normative systems?

Further, while I am of the view that positions based upon an ideal of singularity or Oneness may often be politically justified and pragmatically inescapable, it is now time for legal scholarship to embrace and celebrate the ethos of pluralism. The question of pluralism arises in many contexts in Australian law: for instance, whenever the issue of legal self-determination for Indigenous people is raised,[2] or whenever there is debate about the relationship of international human rights standards to domestic law,[3] there is conflict between the vision of a singular all-controlling law and the vision of co-existing legal orders. Quasi-legal decision-making bodies (such as medical or sporting tribunals), the internal governance systems of large organisations and alternative modes of dispute resolution also raise the image of a multiplicity of legal or law-like systems in our society. In each case, we see some mode of regulating or normalising behaviour in a specific context, which exists alongside the law, sometimes as an optional alternative to it.

The issue of a pluralist understanding of law is much deeper than these examples suggest, because pluralism also leads to a questioning of the nature and limits of law in its conventional sense. It leads, in other words, to a re-evaluation of what we think law is and how it relates to the social, political and moral spheres of life. There is a great deal of contemporary scholarship dissatisfied with the conventional image of law’s separateness and singularity, which is reaching out towards a less totalistic and more fluid understanding of law — one which does not automatically suppress differences of race, culture, sex or sexuality. Such scholarship is driven by a complex of factors: rapid global change;[4] frustration at the inability of conventional understandings of law to explain pluralistic politico-legal entities such as the European Union;[5] a theoretical rejection of objective knowledge and a critique of the partial representation by law of a diverse society;[6] and an appreciation of the influence of highly dynamic forces such as language and cultural symbols on people, their lives and law.[7] The ‘ethos of pluralism’ evidenced by this scholarship is part of a paradigm shift towards a less positivistic, more open and more responsive concept of law.[8] It represents a ‘crisis’ only in the sense that it is a turning point for law away from the traditional insular and contained understanding of a legal system.

The purpose of this article is essentially to explain the significance of the pluralistic attitude in contemporary legal scholarship and to outline the reasons for supporting such a shift in thinking. My focus is not primarily socio-legal theories of legal pluralism, although I will later offer a brief synopsis of some of the main themes of such theory. Nor is this article centrally about postmodernism, with which pluralism is sometimes mistakenly identified.[9] Pluralism in relation to law can be perceived and theorised in many different ways, not all of which are associated with any specific theory of legal pluralism. The article is introductory in that one of my underlying purposes is to explain the relevance of, and need for, a pluralistic attitude in the Australian context. However, I do not wish merely to rehearse a number of (well-trodden) pluralist arguments and mechanically adapt these to Australian law. A further aim of the article is to present a case for a pluralistic approach to law which extends beyond the often obscure and sometimes overly theoretical accounts of pluralism: simply, I argue in favour of a general ‘ethos’ rather than a ‘theory’ of pluralism.

My argument then, revolves around four core claims: first, that the thought or ‘ethos’ of pluralism extends beyond the defined boundaries of any theory; second, that the philosophical and legal preference for monistic explanations is no more rational than even the most open-ended pluralism; third, that the singular view of law is obstructive to the kinds of social change demanded by a plural society; and fourth, that it is possible to think of law — even in its conventional positivist sense — as irreducibly plural, rather than essentially singular and limited. These four points are considered in sections 2 to 5 of this article.

2. The ‘Ethos of Singularity’ and the ‘Ethos of Pluralism’
A. Ethos

To begin with, I should outline what I mean by the ‘ethos of singularity’ and the ‘ethos of pluralism’. I have used the term ‘ethos’ to indicate that this is not a debate between two theories, but rather a broad discordance of approaches with cultural, ethical, ideological and aesthetic dimensions. It is not by reference to any theory of singularity as such, that legal thought is monistic: rather, the thought or ideal of singularity underpins much Western philosophy, which is the intellectual context of legal philosophy and of the picture of law conventionally manifested in legal scholarship. Given the backdrop of Western philosophy, legal philosophy has assumed that its goal is to articulate a unitary concept of law and more practically oriented legal scholarship has reproduced this assumption.

Similarly, while ‘pluralism’ has at times been designated the status of ‘theory’, it can also be described as a set of values, an attitude or an aesthetic emphasis.[10] To speak of the ‘ethos’ of pluralism then, is to highlight the fact that pluralism is itself pluralistic and cannot be satisfactorily reduced to a theoretical model.[11] Most importantly, it is to indicate that a pluralist approach is more about practical ethical positioning in the world than about scholarly theory: not only scholars and educators, but also the judiciary, students, practitioners, legislators and all legal subjects may be motivated by a pluralist ethos. For the sake of simplicity, my description of pluralism and monism presents them as opposite theoretical positions, though in fact, as I have indicated, I see them rather as an interplay of voices, desires, discourses and opinions.[12] We can all be drawn as scholars towards the idea of formulating a theory, which describes a unified system, but we can also recognise the need to acknowledge some form of otherness and plurality. The difference between monism and pluralism may often be expressed as scholarly debate, but it may also be expressed as a tension within scholarship. For this reason, there is nothing incoherent about labelling much contemporary legal scholarship as having a ‘singular plural’ outlook,[13] that is, an outlook that is situated within the monistic tradition but is nonetheless pluralistic in its consciousness of otherness. The distinction between the singular and the plural does not necessarily refer to a mutually exclusive ‘either/or’, but rather the co-existence of different elements in a loosely structured ‘both/and’.[14]

B. The Singular

The terms ‘singularity’ and ‘pluralism’ are fairly simply defined, although the ramifications of the distinction are complex. In the context of legal scholarship and in particular legal theory, the terms ‘singular’ and ‘monistic’ refer to modes of thinking about law, which emphasise its nature as a coherent and whole system — ordered, comprehensive, rational and objective. The ‘singular’ in this sense is not to be equated with the commonly used term ‘particular’, but rather with the philosophical concepts of universality and totality — monism or singular thought raises the prospect of thinking about law as a single type of object, a unit or as something which can be described and theorised as a totality or a system. In contrast, the ‘particular’ is that which defies definition and escapes systematisation.

The view that law is derived from a sovereign entity or singular point of reference — for instance, the state, a rule of recognition or a basic norm[15] — and that it therefore has an ideational unity separate from the realms of culture, morality or politics, is a type of monism, known in jurisprudential thought as legal positivism. The positivist view of law is also typically ‘centralist’ because it understands law to be ultimately derived from some central authority such as a state, rather than locating the sources of law in multiple, de-centred sites.[16] Positivism is the most widespread and accepted understanding of law presently in existence, at least in the West and underpins most legal scholarship,[17] including by far the greater part of legal theory. Positivism reproduces the philosophical discourse of singularity in its claim that there is One law in a particular geo-political space and that the One law is itself One system, defined by clear limits, governed by certain principles and unified by a distinct foundation. Equally singular in outlook are less widespread but still powerful standpoints such as those which argue that law is or should be, the expression of rational principles of human nature, such as those associated with economic concepts or in practical reason.[18] The emphasis upon singularity is revealed in legal doctrine in a variety of ways, for instance, in the view that equality means applying an ‘objective’ standard to people, regardless of their own normative positioning (as influenced by their cultural heritage, religion or gender).[19]

Much ‘critical’ scholarship which targets positive, state based law as the object of its critique reproduces monistic assumptions about law.[20] Given the intellectual context of law, this is unavoidable. Critical analyses of specific doctrines of positive law — especially where law reform outcomes are proposed — often assume the positivist definition of law as an autonomous system of norms, rather than questioning the nature of law’s alleged unity. This focus on positive law is an absolute pragmatic necessity, for while law reform may not correct large-scale social problems or systemic bias in the law itself, it can make some significant, albeit incremental, differences to people’s lives.[21] Moreover (and less commonly in very recent years) some critical legal scholarship conceptualises positive law as a whole in an essentialist fashion — for instance as an instrument for class privilege or male domination.[22] In such theories the doctrinal and symbolic bias evident in many areas of law is reified to the status of a general description of law. Such descriptions of law present a defensible counter-story to the picture of law as a neutral framework which plays no part in the construction or distribution of social power. However, they may also unwittingly entrench the power of law by presenting it as a totality, rather than as fragmented and complex. The presumption of law in its positivist sense does discursively reiterate and therefore reinforce the positivist view of law together with its in-built biases.[23] I do not intend by these remarks to imply any criticism of critical legal scholarship, which understandably and rightly emphasises the defects of law, as it is commonly understood. The point is that the attitude of monism can be said to inform quite different theoretical perspectives about law and crosses the boundary between so-called ‘traditional’ and ‘critical’ thought.

Indeed, regardless of our theoretical outlook and because of the need to engage on a pragmatic basis with law, we often need to proceed as if it were a singular, self-contained and objective system: if we wish to relate to the system effectively, we need to play by its rules. Even if law is potentially open, essentially indeterminate and responsive to social change, scholars engaging with law nonetheless also have to assume a more singular and fixed concept of law in many circumstances.

C. The Plural

In contrast to the monistic and centralist narrative about law, the ‘ethos of pluralism’ enshrines an attitude which celebrates multiplicity and difference in the law. A pluralist approach rejects the view that law is one system, imposed on one society. It sees law as diverse and fragmented, not systematic and cohesive. There are many ways of defining pluralism in a broad philosophical sense. For present purposes I would like to adopt the minimalist explanation offered by William James, who said that ‘[t]he irreducible outness of anything, however infinitesimal, from anything else, in any respect, would be enough, if it were solidly established, to ruin the monistic doctrine.’[24] What is important in this statement is the phrase ‘irreducible outness’, which indicates the relationship of pluralism to otherness. Wherever there is an Other which cannot simply be accommodated within a system of thought, monism is under challenge. Faced with such an Other, we can try to assimilate it and make it fit within the unity (the attitude of singularity) or recognise its difference in its own right (the attitude of pluralism).

As with any complex body of work, there are several different ways of classifying the literature on legal pluralism, for instance, according to method (empirical or theoretical), discipline (anthropology, sociology or law) or subject matter (law in former colonies, law in the West or the positive legal system itself). In one of the first attempts to lay out a theoretical terrain for legal pluralism, John Griffiths described it as a sociological fact — an empirical state of affairs attaching to human relations:

A situation of legal pluralism — the omnipresent, normal situation in human society — is one in which law and legal institutions are not all subsumable within one ‘system’ but have their sources in the self-regulatory activities of all the multifarious social fields present, activities which may support, complement, ignore or frustrate one another, so that the ‘law’ which is actually effective on the ‘ground floor’ of society is the result of enormously complex and usually in practice unpredictable patterns of competition, interaction, negotiation, isolationism, and the like.[25]

Griffiths says that pluralism is ‘the fact’ about the social field, whereas ‘[l]egal centralism is a myth, an ideal, a claim, an illusion’ which, because of its ideological power, has been ‘able successfully to masquerade as fact’.[26] This explanation, which opposes a true descriptive account of a social field to an ideological (and apparently therefore false) account, may oversimplify the role of convention in constructions of reality.[27] Without going into the epistemological issues raised, however, it seems perfectly reasonable to state that there are competing pictures of law and that monism is only one such picture. Pluralism offers both a better (more useful and more empirically inclusive) descriptive account of the law/society nexus and a normatively preferable account, because it presents opportunities for the legal recognition of social diversity.

Griffiths distinguishes between ‘weak’ and ‘strong’ pluralism.[28] ‘Weak’ legal pluralism exists where a difference is recognised and managed by a dominant state legal system.[29] For instance, the ‘difference’ between Australian Commonwealth law and South Australian law is managed by the Constitution, in particular by the sections dealing with the distribution of powers and the inconsistencies between the laws of the states and the laws of the Commonwealth. Similarly, Indigenous land entitlement is managed by the common and statutory law on native title: in a weak sense, Australian law has recognised Indigenous law on this issue, but it is a recognition which does not subvert the basic centralist dogma of Australian law, because it is fully effected within that law. Native title illustrates a continuation of standard colonial practices (in Australia and elsewhere), whereby Indigenous laws can achieve some status, but strictly within the framework of colonial recognition.[30] The recognition of such differences as Federal/State and European law/Indigenous law, to the extent that they are contained within dominant law, are no threat to the doctrine of centralism because they are structurally subsumed within state law. With ‘weak’ pluralism there is no ‘irreducible outness’, because the law which might otherwise be regarded as ‘out’ is in fact controlled by the system.

In contrast, ‘strong’ legal pluralism means essentially that the difference or otherness upon which the understanding of pluralism is based cannot be reduced to the singular authority of a state. There is ‘strong’ legal pluralism where two or more ‘laws’ exist in the one place and there is no dominant or overarching system which orders the relations between the different laws. To take once more the example of colonialism, the recognition of Indigenous law granted by the Australian legal system does not end any enquiry about the existence of Indigenous law, which has an independent cultural basis. Strong legal pluralism acknowledges not only a normative difference which is accommodated by the mainstream legal system, but also a difference which is independent of and uncontrolled by, dominant law. Such a difference is irreducible in the manner described by William James. Moreover (although this goes beyond Griffith’s analysis) there is also ‘strong’ legal pluralism when — at the theoretical level — difference or otherness is understood to be intrinsic to the very existence and concept of law. It is a challenge to centralism to point out that its very singularity is inherently unstable and self-contradictory.

Griffiths argued that ‘[l]egal pluralism is an attribute of a social field and not of “law” or of a “legal system”.’[31] However, recent theorists have departed from this focus upon the empirical description of a social field. In keeping with these trends, I would like to distinguish here between two senses in which law can be regarded as plural — first, the sense in which we perceive plural legal systems operating at once in a given social environment (the pluralism described by Griffiths) and second, the sense in which we perceive the plurality inherent in the legal system conventionally characterised by its singularity.

First, then, there is the outward-looking pluralism which sees a diversity of legal or law-like normative systems existing in the one space.[32] The term ‘legal pluralism’ is usually taken to refer to theory about the plural normative sectors in a society and across the globe — which may include formal positive law, non-sovereign but still recognisably ‘legal’ orders (such as international law, Indigenous law and religious law), as well as cultural practices with normative resonance, such as behavioural codes. Pluralism of this type has often been empirical in its method,[33] insofar as it is based on the observation that conventional descriptions of law do not match the facts of legal multiplicity. The singular and statist account of law is falsified many times over by the mere existence of normative and even legal spheres not reducible to the unity of the state. Pluralist thought and legal scholarship with a pluralist outlook has aimed at better describing and understanding the interface and interaction between the different types of law which order a society. Such legal pluralism does not necessarily displace the conception of state law as a unified and coherent system. It may merely situate state law as one form of law within a context of normative multiplicity.

Second, there is the more inward or reflexive pluralism which looks at positive, state-defined law and sees it as inevitably plural or incapable of being contained within its own limits. Thus, in addition to the observation, description and theorisation of plural legal orders, the term ‘legal pluralism’ can also refer to the pluralism within law in its conventional, institutional sense.[34] Much, though not all, of this theory has a conceptual, rather than an empirical orientation in that it redefines the concept of state law in a pluralistic fashion. Positive law can be regarded as inherently, irreducibly plural — full of gaps, contradictions, unresolved histories, counter-narratives and, most pertinently, composed of multiple dimensions and layers. It can be regarded as derived from plural origins,[35] as conceptually or ‘axiologically’ plural[36] or, as Robert Cover illustrated, from the multiple normative universes existing in any society.[37]

I will undertake a fuller evaluation of pluralist thought in Part 5. It is important however at this point to distinguish the idea of ‘legal pluralism’ from mere legal respect for ‘value’, ‘cultural’ or ‘moral’ pluralism. Liberal thinkers sometimes speak of ‘value pluralism’ or ‘moral pluralism’ in law, meaning that on some moral issues law does not (and need not) enforce a single set of values, but leaves wide discretion for individuals to practice their own morality. From the liberal point of view (and despite the clear favouritism of law for heterosexual relationships) it might be said that there is a degree of moral pluralism in law regarding sexual preference because same-sex relationships are not prohibited by law. Generally, law takes no notice of what we wear, what religious observances (if any) we favour, how many sexual partners we have, whether we plant trees for a hobby, believe in the supernatural or eat animal flesh. Law may place restrictions on all of these activities and even strongly influence people’s choices, but choice is not wholly determined. In many respects, liberal law permits, though does not always encourage, pluralistic modes of living — indeed, a core belief of the political philosophy of liberalism upon which much of our law is built, is that moral and value pluralism should be tolerated and even promoted, provided a particular belief or practice does not harm others.[38] Law may even accommodate cultural difference by establishing a regime of minority or group rights.[39] For instance, colonial legal systems (including contemporary Australian law) typically provide for limited recognition of native laws while insisting upon the unassailability of state sovereignty: as Griffiths notes, this is regarded as a ‘messy compromise which the ideology of legal centralism feels itself obliged to make with recalcitrant social reality.’[40]

However, this limited realm of moral or cultural pluralism protected by law does not necessarily challenge the monistic view of law which I outlined above, and is furthermore subject to the criticism that it neglects the systemic preferences and biases which flow from the interface between an allegedly neutral law and powerful social norms. The liberal promotion of value pluralism through a supposedly neutral framework of law does not, in other words, challenge the view that law is coherent, logical and systematic and derived from a singular state entity. This is because, in line with the positivist doctrine, it is possible to encourage moral or cultural pluralism while, at the same time, insisting on the monism of law: in fact, some positivists have thought that the monism of law — the singularity, separation and neutrality of law — is just what is needed to allow liberty to flourish.[41] The trouble with that view, however, is that it assumes that it is possible to have a framing legal system which is culturally and morally neutral. It does not recognise that the very idea of a legal system which is separate from the social, political and ethical existence of a community is itself an expression of a particular culture.[42] Despite the rhetorical attractiveness of the concept of a legal system which is disinterested in cultural, religious and social differences, its very existence suppresses deeper cultural ideas about the nature of law.[43] While this may be pragmatically unavoidable, that does not mean that we must exclude from the theoretical consciousness other conceptions of law which may point towards a more inclusive legal practice.

3. Order vs Disorder in Philosophy and Legal Theory
Parable — Those thinkers in whom all stars move in cyclic orbits are not the most profound: whoever looks into himself as into vast space and carries galaxies in himself also knows how irregular all galaxies are; they lead into the chaos and labyrinth of existence.[44]

As I will explain in Part 5, the most significant and far-reaching work on legal pluralism has been undertaken in recent years by legal anthropologists and sociologists. Far less attention has been paid to legal pluralism — either as a distinct theory or as a general ethos — by legal philosophers, who have tended to focus upon a monistic concept of law.

The reasons for the lack of interest in legal pluralism on the part of legal philosophy are not difficult to perceive, deriving as they do from the pervasive conditions of modernity. Although pluralism of formal legal systems was a feature of late-medieval English society,[45] the rise of rationalist philosophy and nationalist politics coupled with the uprooting of people from their local contexts in the drive for universalism, set the stage for a legal philosophy which was typically modernist in its objectivism and essentialism. In his campaign for an orderly and known legal regime, for instance, Jeremy Bentham famously criticised the common law — with its reliance on judicial personalities and other indeterminacies — as a ‘shapeless heap of odds and ends’ and a ‘prodigious mass of rubbish’.[46] The common law survived the modernist trend towards a more systematic legal order, but the idealistic view that law ought to be objective and certain was transformed (by the force of positivism) into the fiction that it was so.

The desire for totality, logic and coherence in legal theory reflects the aesthetic preference of modernist philosophy for order and is not a self-evident necessity.[47] It is a preference which arguably is not based upon reason, but upon the traditional parameters of Western philosophy. As William James noted almost a century ago, the discipline of philosophy seems to promote an aesthetic of clean structure and purity, associated with the attitude of monism:

[p]hilosophers have always aimed at cleaning up the litter with which the world is apparently filled. They have substituted economical and orderly conceptions for the first sensible tangle; and whether these were morally elevated or only intellectually neat, they were at any rate always aesthetically pure and definite, and aimed at ascribing to the world something clean and intellectual in the way of inner structure. As compared with all these rationalizing pictures, the pluralistic empiricism which I profess offers but a sorry appearance. It is a turbid, muddled, gothic sort of an affair, without a sweeping outline and with little pictorial nobility.[48]

Without the association with empiricism, Nietzsche also commented on the attitude of singularity promoted by philosophy, putting the emphasis on the subjectivity of the philosopher: he said that to be ‘philosophically minded’ we ‘usually endeavour to acquire a single deportment of feeling, a single attitude of mind towards all the events and situations of life’.[49]

Like philosophy in general, legal philosophy has not cultivated an attitude of pluralism in either the objects under its examination or the philosophising subject, preferring instead to emphasise the order to be found in a monistic conception of law and its allegedly rational subjects.[50] For instance, legal positivism has striven for a unifying concept of law, expressed by Joseph Raz as ‘a test, which distinguishes what is law from what is not’.[51] In contrast, a pluralistic approach to law is not ‘intellectually neat’ or ‘aesthetically pure’ and a self-described ‘theorist’ or ‘philosopher’ is at increased risk of being challenged for inconsistency if he or she defends a mode of thought which, in the end, cannot be described as a system or theory. This perhaps explains why even legal pluralists have tried ‘to form one uniform theory with a diverse research object’,[52] rather than accepting that such theoretical unity may be impossible. Legal philosophy clearly prefers theories, which profess unity, system and order, to those that appear messy and self-contradictory.

Is there any general reason to believe that the theoretical totalities constructed by legal philosophers are more ‘true’ than the pluralistic perceptions that ‘truth’ may be localised, incommensurable, produced by discourse and partial or relative? On what basis can we say, for instance, that the philosophical crystallisation of a (presumed) lawyer’s law results in a more true or adequate concept of law than the rather more messy description which approaches the subject from the position of the legally marginalised or excluded? This is not a question which I can address in detail here, but as I have suggested, the reasons for the dominance of monism may be more aesthetic and historical than rational: faith in singularity is often a mere habit or preference which needs to be subject to the same critical scrutiny as any theoretical claim.

The next section outlines some problems with the prevailing idea that law is singular and begins to make a case for the need to pluralise our understanding of law: by this, I mean that it is necessary for legal theorists to understand the multiplicity of normative orders, to accept the plurality of concepts of law and to see the predominant conception of Western law as inherently plural. The arguments I offer are both ethical and epistemological reasons for preferring pluralism. They are, in other words, based on the perception that pluralism is normatively preferable because it promotes a more inclusive concept of law and more empirically useful because it more adequately captures the multiple normative engagements within contemporary society.

4. The Case for Pluralism
To attempt to imprison the law of a time or of a people within the sections of a code is about as reasonable as to attempt to confine a stream within a pond. The water that is put in the pond is no longer a living stream but a stagnant pool, and but little water can be put in the pond. [53]

The most powerful and accepted version of legal monism, legal positivism, has been subjected to sustained theoretical critique by legal theorists for the last three decades. Despite the intensity of the critique and evidence of a conceptual shift to a less hierarchical and less formal understanding of law, the positivist model remains influential. However, this concept of law is undermined not only by theoretical critique, but also (perhaps more so) by the practical pressures on monistic legal doctrine. Ideological tension within the academy is not confined to law and is not only driven by theoretical disagreement, but rather by changing socio-political conditions.[54] Debates and counter-hegemonic perspectives within scholarship are symptomatic of global cultural and political developments and are accelerated by technological innovation. While legal philosophy may not have come to terms with the pluralistic demands of globalisation, these demands are inexorable and have already had a marked impact on legal practice and scholarship more generally.

In many respects, the classical positivist concept of law is unsuited to modern circumstances and demands not only critique and re-evaluation,[55] but also the formulation of alternative theoretical methods. While legal centralism may acknowledge the multi-layered character of state law and the multiplicity of legal orders coexisting within and across territorial borders, it tends to focus on structure, hierarchy, theoretical separation and single ideational origins. Centralist models of law therefore pose a number of problems for theorists and practitioners of law, many of which are implied in the preceding discussion. In what follows, I have tried to summarise these problems more systematically (although it should be noted that they are all interrelated).

First, legal centralism does not adequately acknowledge the fact that even the dominant manifestation of law in Western thought — institutionalised, state-derived law — is neither closed nor autonomous.[56] Despite the existence of much critical theory illustrating the inseparability of legal systems and social environments, legal monism has a tendency to reify law so that it becomes an objectively describable set of doctrines or institutional structures, separate from the dynamic and multiple domains of culture and politics. Law is reduced to a proper disciplinary domain, rather than being fully embedded in and a product of, an unsystematic and variable social environment. Against this tendency of legal theory to reify law, Desmond Manderson points out that law ‘is only realised through the actions of particular human beings who exist simultaneously in several discourses and who are, therefore, themselves plural.’[57] As actors in the world, we are capable of adjusting to different normative environments and in many cases adapt our actions and decisions accordingly. However, we cannot mechanically switch on and off our basic (and plural) normative infrastructures such as language, cultural heritage, gender expectations, class background or ingrained notions of racial identity. As a construct of human action, law cannot be separated, empirically or conceptually, from such normative plurality.

Second, centralist models are based upon a model of law associated with nationalism and ethnocentrism in the political sphere.[58] In assuming that law is derived from a single source and is tied to a territory with fixed boundaries, centralism fails to theorise the multiplicity of sources of law and fails to conceptualise non-state law, including, but not limited to, Indigenous law and international law.[59] Indigenous law is therefore assimilated and/or excluded by the institutions of law, but is not recognised as law in its own right. Since assimilation generally does not involve recognition of a thing within the terms of its own identity, but is rather a taking over by a more powerful or larger structure, it also involves exclusion — that is, of the thing in its own right. For instance, as many commentators have pointed out, the recognition of native title by Australian courts is an instance of both assimilation and exclusion.[60] In an effort to acknowledge the prior custodianship of the land by Indigenous people, the Australian High Court — in Mabo (No. 2)[61] — gave some recognition within Australian law to an aspect of Indigenous law. However, in reducing and domesticating a portion of the Indigenous law, the High Court effectively excluded recognition of Indigenous law as law, because it reinforced the unique power of Australian law to decide what counts as law.[62] Yet Indigenous law exists independently of Australian state law and it is a failing of the centralist model of law that it is unable to recognise that fact. I have deliberately stated this matter as a failing and a problem of the dominant conception of law operative within the Australian state, rather than as an objective problem of how two legal systems can co-exist. The ‘problem’ does not arise primarily as the result of the mere co-existence of two legal orders. While this is an issue which also deserves consideration, it only comes into existence in the legal arena once there is actual recognition of two laws, rather than one. The ‘problem’ arises, then, because of the in-built limitations of the positivist, singular, statist conception of law,[63] revealed so clearly in Mabo, which prevent equal dialogue between the two systems. Similarly, the resistance shown by some politicians, media commentators and judges to international law,[64] illustrates an over-emphasis on the monistic, nationalistic and self-determining nature of Australian law and limits our ability to participate fully in global transitions.

Third, legal centralist models tend to maintain the liberal association of law with the public and universal spheres, remaining blind to the ways in which power to coerce and regulate cuts across public and private, universal and particular.[65] Juridical power, as Foucault argued, constitutes only one of many forms of influence over people’s social and economic relations and is not the most strongly determinative form of power.[66] Models of law which confine the ‘legal’ to official, institutional, descriptions of law neglect both ‘unofficial’ normative environments, as well as the ways in which formal law reaches into the lives of legal subjects. It fails to explore and sometimes even to recognise the reliance of state law on everyday socio-cultural norms, thus maintaining a false air of separation and neutrality. From the point of view of the subject then, whose engagement with normative environments occurs in a multiplicity of sites, monism provides an impoverished and quite unrealistic view of law as something set apart from the realm of the human.

Fourth, legal centralism fails to recognise the ways in which formal law is legitimately circumvented by informal dispute resolution practices, such as some forms of alternate dispute resolution or native title agreements reached outside the formal mechanism established to determine claims.[67] Legal centralism also neglects the postcolonial character of many of the world’s nations, where the historical opposition between colonial and Indigenous laws has resulted in hybrid legal systems encompassing two and often more, layers or sources of legal knowledge. It is true that there is a great deal of social, scientific, anthropological and legal pluralist theory concerning such legal hybridity. What is surprising is that there remains a resistant tradition in mainstream legal theory which fails to consider the pluralist possibilities of contemporary formal and alternative legalities for the concept of law, instead continuing to draw upon an outmoded construction of state law and institutional authority for its theoretical debate.

Fifth, centralist models deal poorly with questions of social and cultural difference and assume an unrealistic level of coherence within legal culture,[68] a criticism of positivist legal thought advanced by feminists, race theorists and others. The universal standards assumed by a monistic legal culture reinforce the politically dominant standards of whiteness, heteronormativity and masculinity: a more plural conception of law would arguably pave the way for a diversification of central legal norms.

Finally, legal centralism presumes a single criterion of legitimacy — whether it is known as a sovereign, a grundnorm or a rule of recognition — and fails to consider the complex and diverse social foundations of law.[69] As legal subjects, we do not act merely on the basis of legal prescriptions as they are identified and interpreted in a formal system, but on the basis of the intersecting demands of our own ethical beliefs, our location in a social field, prevailing discourses about right and wrong and any number of more practical considerations. Judges and lawyers do the same. Law’s legitimacy cannot reside solely in a formal concept, but is equally (or more so) the consequence of the ongoing relationships, decisions and actions undertaken in a primarily social environment. This is a descriptive and conceptual argument concerning the inadequacy of the monist concept of law but it is possible to see how it also has normative consequences: if law’s legitimacy has a social (ethical, discursive, cultural) and not merely a formal legal basis, then it is a mystification for judges to avoid responsibility for their decisions merely by referring to established doctrine.

Within Western legal systems, the need for the recognition of legal multiplicity has been regarded as urgent in many areas.[70] The European Union brings together diverse national systems, regional conflicts and allegiances, special-purpose ‘Euroregions’, some Indigenous legal systems (such as that of the Sami in Sweden, Norway and Finland), and an extensive regulatory system, within the increasingly significant context of international law and trade alliances. The traditional unity of law, state and territory is being challenged by these cultural and political forces, resulting in a blurring of the traditional frontiers and certainties of law.[71] It is in Europe that the concept of national sovereignty is most evidently in the process of being transformed.[72] Similarly in Canada, where pluralist thought is well-established, dominion and federal legal jurisdictions operate alongside Indigenous territories, trade alliances such as North American Free Trade Agreement (NAFTA) and broader international frameworks. In the United Kingdom — increasingly symbolically as well as legally associated with ‘Europe’ — the ‘new constitutional culture’[73] includes devolution of state power to regional parliaments, social, political and economic integration within the framework of the European Union and incorporation of European human rights law through the Human Rights Act 1998. Local custom, sometimes only partially incorporated into common law, can play a significant role in social ordering, as has been shown with the conflict played out in the late 1990s over ancient rights of way and modern notions of absolute land ownership.[74]

In Australia, a situation of legal plurality also exists in practice but is poorly understood and rarely theorised.[75] As I indicated in the opening section of this article, there are two obvious areas where the question of pluralism arises: the recognition of Indigenous law and the need for the legal system to become better cognisant of international law. In addition, there are numerous arenas of quasi-legal order (such as alternative dispute resolution mechanisms), which interact with the formal legal system, as well as ongoing critical challenges to the depiction of law as a neutral and systematic order. However, the practical and theoretical understanding of legal pluralism in Australia lags behind that of other Western liberal democracies: as I have argued, this presents obstacles in our thinking about vitally important matters such as the relationship between Indigenous and non-Indigenous Australians.

New practices of law, taken together with ongoing theoretical critique, illustrate that state based law can no longer be sustained by the image of a separate and exclusive set of norms derived from a single sovereign centre. Adherence to centralist models generally and positivism in particular, obstructs both an understanding of the existence and nature of legal plurality, as well as the practical development of methods of mutual recognition and co-existence of legal orders. As Boaventura de Sousa Santos has argued, legal theory needs a new practical and conceptual direction, which will recognise both the multiple sources underpinning law as conventionally understood and the global scale and plurality of modes of social order.[76]

5. Legal Pluralisms

Before explaining this general ‘ethos of pluralism’ further, I wish to provide a brief outline of established pluralist theory indicating how it, ironically, could also benefit from a more open and pluralistic mentality. My intention is not to undertake a thorough review of pluralist literature, as that work has been undertaken elsewhere.[77] What follows is merely an outline of some types of traditional pluralist theory, a summary of the main criticisms of pluralism, an indication of where pluralism is headed and some thoughts about how it relates to the tradition of legal philosophy.

A. Pluralism in Fact

Until recently, legal pluralism was divided into two scholarly areas with some overlap.[78] ‘Classical’ legal pluralism refers to anthropological and sociological analysis of the legal situations of those ex-colonial societies, which had dual or plural legal systems derived from Indigenous, folk or customary law and imperial law.[79] The ‘new’ legal pluralism, dating from the late 1970s is based upon the insight that all societies, whether or not formerly colonised, are composed of multiple ‘semi-autonomous’ fields of normative control.[80] Many forms of ‘law’ exist which are regarded as binding, yet which are non-territorial, non-state, local or international, and frequently non-hierarchical.

Both forms of pluralism have identified and studied the fact of legal plurality and in this sense pose an important challenge to the presumption that law is merely singular and centred on a hierarchically superior source. However, less attention has been paid to the conceptual dimensions of plural law. Several shortcomings have been identified with the theoretical underpinnings of social-scientific and anthropological legal pluralism. The theory of legal pluralism has in particular lacked a rich analytical approach to the different modes of law, which is not ultimately derived from the model of institutionalised law and which is sufficiently flexible to take account of non-discrete, open-textured and dynamic normative systems.[81] It has tended to assume that the pluralism of law consists merely in a multiplicity of objective or positive ‘semi-autonomous’ systems,[82] and has not sufficiently theorised law as a process in which legal subjects and legal norms are interdependent. Finally, one of the shortcomings of monistic legal philosophy which I mentioned above is its insistence that ‘law’ can be defined according to a fixed set of criteria: legal pluralism has often reproduced this assumption, tending to assume that ‘law’ is susceptible to an essential definition, whereas it simply may not be.[83]

These various factors have impeded the development of legal pluralism in its recognition of informal legal orders and in its account of the diverse ways in which formally recognised and informal law interrelate. It has prevented the establishment of a sound theoretical nexus between a plural view of law and the various manifestations of social power.[84] It is worth noting, for instance, that while one of the core concerns of feminist legal theory has been the interface between social norms of gender and formal law and there have been calls for law to be more pluralistic in its recognition of citizens and subjects, little interest in pluralist theory has been shown by feminist legal scholars.[85]

To summarise, part of the problem with much (not all) legal pluralist theory of the past few decades is that it is too focused on systematic and totalistic understandings of legal plurality, too insistent on the elaboration of a theoretically singular view of plural laws. To be true to its name, legal pluralism could benefit from the recognition of irreducibly different accounts and experiences of law. As several commentators have noted, there is also a need for legal pluralism to move beyond the empirical description of pluralism as a socio-legal fact, to a deeper understanding of the conceptual pluralities inherent in the relationships of the subject, discursive and symbolic forces, the positive social sphere and law.[86]

B. Pluralism as Inherent

In response to these criticisms, there have recently been calls for another ‘new’ or ‘critical’ legal pluralism.[87] The, as yet, rather undeveloped approach of ‘critical pluralism’ rejects the empirical notion that the social fact of plurality can be comprehended merely as objective knowledge. In a typical ‘critical’ gesture, the focus is turned upon subjectivity and the ways in which subjects all inhabit multiple conflicting and relating normative worlds.[88] Thus, critical pluralism attempts to move beyond the description of law as fact:[89] it sees the subject as an expression of law and as a site of change;[90] it is attentive to the ways that normative systems are discursive (and not merely positively laid down structures); it sees normativity as a process rather then merely as a structure; and it replaces the aesthetics of control, closure and order with an aesthetics of disorder, chaos and undetermined change.[91]

The newer versions of legal pluralism suggest to me two challenging lines of inquiry for legal philosophy. The first is the pluralisation of concepts of law. As Brian Tamanaha redefines pluralism, ‘the plurality I refer to involves different phenomena going by the label “law”, whereas legal pluralism usually involves a multiplicity of one basic phenomenon, “law” (as defined)’.[92] The appreciation of incommensurably different concepts of law ought at the very least to generate reflective analysis of the historical and cultural specificity of the mainstream Western definition of law. As indicated above, traditional legal theory has traditionally marginalised types of law, which do not have an institutional appearance comparable to Western law, labelling such laws as defective, primitive or merely cultural practices. Extraordinarily, in countries such as Australia where alternative models of law are empirically obvious, this unitary concept has been maintained. The recognition that all law is a cultural practice, that it may therefore be expressed in a variety of different forms and cannot be reduced to a concept, creates quite new — and unavoidable — horizons for legal philosophy.

The second line of inquiry for legal philosophy involves the pluralisation of law in its commonly understood, positivist sense. Beyond the appreciation of a multitude of legal or law-like normative systems, a critically oriented pluralism points to the inherent pluralism of law — that is, the recognition that mainstream state based law is itself plural in that it is derived from plural sources, relies upon plural modes of reasoning and interacts in complex and contradictory ways with a plurality of social, ideological and political systems of significance. Chantal Mouffe, for instance, describes plural democracy as ‘not merely a fact ... but rather an axiological principle, that is, something constitutive at the conceptual level’.[93] Applied to legal theory this approach would not see positive law as a unifiable or monolithic system, but rather as characterised by its own ‘irreducible outness’. From there it may be possible to begin to re-conceptualise the Western concept of positive law as essentially complex and heterogeneous. Such a re-conceptualisation of state based law would celebrate the affirmative elements of existing critical theory, for instance making incommensurability, dynamism and lack of totality a virtue, rather than a fatal flaw in the concept of law.

For instance, in an influential piece written in the early 1980s,[94] Robert Cover theorises ‘jurisgenesis’ or ‘the creation of legal meaning’ as a process that ‘takes place always through an essentially cultural medium’[95] and is not reliant on the state. A normative world or nomos is the result of multiple social and cultural factors, including mythologies and ideologies, central texts, language and ‘interpretive commitments’. In relation to state law, the pronouncements of judges and legislatures constitute a particular nomos. But that is only one, very narrow, understanding of legal meaning and it is an error to think that this nomos is the only one or even the central or superior source of legal meaning. Cover provides examples of several religious communities to show that, even in relation to state law, they each inhabit a distinct nomos as they each construct state law and engage with it in the context of their religious affiliations:

Sectarian communities differ from most — but not all — other communities in the degree to which they establish a nomos of their own. They characteristically construct their own myths, lay down their own precepts, and presume to establish their own hierarchies of norms. More importantly, they identify their own paradigms for lawful behaviour and reduce the state to just one element, albeit an important one, in the normative environment.[96]

Cover’s important insight was that the origin of legal meaning — and thus the origin of law — exists in the multiple sites of social association. While his main examples concern sectarian associations — those separated from the mainstream by some overarching religious or political norm — his point is not confined to the alternative worlds of such groups. Indeed, the quotation above implies that while the degree of normative difference might be less in communities which remain strongly integrated with the mainstream, there is ‘jurisgenesis’ or the construction of legal meaning in all sites of social association, whether minority, dissenting or largely identifying with mainstream values. In contemporary Australia, for example, we could note that distinct sites of jurisgenesis can be found in Indigenous communities, in religious associations, in feminist groups, in prison populations, among law enforcers, small business people, executives in large corporations and among ethnic minorities. These, and other, associations — all with differing degrees of identification with a ‘mainstream’ view of law — have their own normative world. Each nomos is constituted in part by state law, but each has a different ‘take’ on it. The result, according to Cover is ‘too much law’,[97] a plenitude or plurality of laws. In such a context the function of the state is ‘jurispathic’, that is, to suppress or kill law: ‘Judges are people of violence. Because of the violence they command, judges characteristically do not create law, but kill it.’[98] The function of the judge operating conventionally is to suppress the plurality of law by choosing one interpretation as the official one: the judicial choice is not always better, wiser or more insightful than another’s understanding of law, but it is conclusive (and therefore invested with the violence of finality and its associated responsibilities).

The focus on singularity conventionally encouraged by legal theory is clearly a source of frustration for a great many legal scholars and decision makers. While much contemporary legal scholarship does not consciously adopt the terminology or even the label of ‘pluralism’, it is nonetheless arguably motivated by a pluralist ethos because it rejects the view that state law is a totality characterised by its coherence, objectivity and separation from other social and political normative spheres. Such a view encompasses a broad spectrum of legal thinkers, including many feminists, race theorists and postmodernists.[99] For instance, critical legal scholars have argued that law is conceptually inseparable from a heterogeneous society: the inherent pluralism of law from this point of view is derived from the intrusion of the social ‘other’ into the definition of law. Inherent pluralism can also be located in the contradictory and fictional foundations of any singular structure of law. Since law is incapable of grounding itself, its conceptual foundations rest on some ‘other’ — a political or social force — which is regarded as outside law, but which is nonetheless inherent to the definition of law.[100] If law is essentially a cultural expression then the foundation for its legitimacy is a radically plural society. Pluralism can also be identified in law’s textuality: as with any text, meaning is not determined in advance, but is the product of the engagement of active minds, subjects ‘other’ to law, with the text of law. In these ways and many others, the plurality of law and its inevitable reliance on an other, is demonstrated.

Even more generally, the pluralistic outlook can also include the approach of scholars and legal commentators who argue broadly that the interpretation of law necessarily relies upon social and other contextual factors:[101] this view, while perhaps not adopting the radically plural stance of rejecting the state-defined concept of law, nonetheless connects the concept of law to an irreducibly pluralistic other — the community at large.[102]As I have indicated, the pluralist attitude to law extends far beyond a self-identified school of legal pluralism.[103] A great deal of scholarship is motivated by a pluralist ethos, even though it may not consciously adopt that position.

To my mind and as I indicated at the outset, these developments in pluralist thought are merely a part of a much larger movement in scholarship and practice. As I indicated above, the ‘ethos of pluralism’ is not confined to self-consciously pluralist theory, but is to be found wherever there is a critique of the autonomy and separateness of law, and, wherever the coherence of law as a neutral system of norms derived simply from state authority is challenged. Such critique suggests that law is fully embedded in social life, it uncovers its historical and political contingencies and it illustrates the indeterminate and essentially plural possibilities for legal decision-making. Such an ‘ethos of pluralism’ is also to be found in the extensive scholarship striving for a more just recognition of Indigenous law in its own right or a more open negotiation with the norms of international law.

C. A Changing Concept of Law

The two pluralist attitudes outlined above — that which sees a multitude of types of law within a social space, and that which argues in favour of the openness and intrinsic heterogeneity of any ‘single’ expression of law (including state law) — have both a descriptive and a normative dimension. They identify and describe certain entities as reflecting a state of legal pluralism, but they are also underpinned by the view that, for political and social reasons — pluralism is normatively preferable to monism. These descriptive, conceptual and normative justifications for a pluralistic epistemology of law have been explained and critiqued more fully in Part 4. Importantly, the two types of pluralism I have described are also structurally related. Seeing the positive legal system as essentially open and flexible (to some degree) provides the space in which the co-existence of quite different normative orders can be understood, rather than rejected as a contradiction in terms.[104] Put bluntly in the Australian context: a recognition of the inevitable difference and plurality within Australian law (a recognition that it is not as coherent and systematic as it is often presumed to be) is a precondition for the recognition of the co-existence of Australian state law with other fields of law, whether Indigenous law, International law and other normative fields not routinely dignified with the name of ‘law’.

A version of this claim is also made by Larissa Behrendt: she argues that a pluralist co-existence of Indigenous law and non-Indigenous law can only be achieved by institutional change, in particular, the ‘embodiment of differences in institutional forms’.[105] One concrete example of the emergence of difference within mainstream law might be the increasing involvement of Indigenous people in the court system — not as judges or magistrates, but as community participants in the sentencing process.[106] At the very least, such practices point to the inadequacy of ‘normal’ non-Indigenous legal practices and acknowledge the existence of a significant difference — Indigenous law and culture. Recognition of the ‘Other’ outside non-Indigenous law requires an opening up or pluralisation in the thinking and the practices of non-Indigenous law.[107] Early indications seem to be that the coming together of white law and Indigenous law which these practices represent (albeit within the umbrella of white law) may lead to genuine change within non-Indigenous law[108] in a direction which is useful to Indigenous people.[109] If the change is successful in the long term, this may be a consequence of the fact that it is not enforced and controlled by state law, but has rather drawn on the grassroots willingness of non-Indigenous judicial officers to alter their own legal culture and to ‘think laterally, outside the box of the white legal frame’.[110] To generalise, recognition of and co-existence with anything conventionally defined as ‘Other’ to mainstream law will require a fundamental change in the conceptualisation and institutional manifestation of the mainstream.

6. Conclusion

To speak of ‘the law’ in the singular is to impose the unity of an idea upon a plurality of sources, subjects, interpretations and institutions. It is to reduce multiple experiences of law to a narrowly defined ‘lawyer’s law’, an elitist entity artificially detached from its social foundations. Law is an ‘it’ with clear boundaries only in the positivist imagination. However, the discursive force of that view of law confers upon it a self-fulfilling truth status: it is ‘true’ because we assume it, and perform it on an ongoing basis. At the same time, the ethos of pluralism suggests alternative concepts of law and points to the possibility of a less totalistic, but nonetheless affirmative (not negatively critical) understanding of law’s heterogeneous nature.

The argument elaborated here about the ethos of pluralism is not only theoretical, but is also ethical and political. As indicated above, the concept of law based on singularity and separation is obsolete and obstructive: it is no longer politically useful and nor does it reflect the needs of a diverse and complex world which remains nonetheless in the grip of divisive and absolutist ideas relating to race, culture, gender and religion. As Manderson notes, pluralism offers an alternative to the modernist and positivist aesthetics of systematicity and coherence: a pluralist legal aesthetics values change, multiplicity,[111] and even chaos.

Critical theorists have demonstrated that the dominant legal order is implicated in systems of social power such as gender and race, thereby undermining the legal positivist claim of the neutrality and separateness of law. Rarely, however, has the possibility of an alternative concept of law which would elaborate upon these complexities, been discussed. The development of a legal pluralism, as opposed to (the often tokenistic) liberal legal tolerance of moral and cultural pluralism, is a necessary precondition for the equal co-existence of diverse social orders. However, it is not necessarily the theory of pluralism as such which is evidence of the changing paradigm of law, but rather the sustained challenges to law’s closure and singularity coming from a variety of sources — not only critical theorists, but also scholars and practitioners operating at the interface between dual or plural legal orders. It is my view that only by developing a more open concept of law, which can recognise and accommodate cultural, sexual and other forms of difference, will non-state laws such as Indigenous law, international law and the multiplicity of informal normative relationships be acknowledged.


[*] BA, LLB, MA, DPhil, Professor, School of Law, Flinders University. Research for this article has been supported by an Australian Research Council Discovery Grant. I would like to thank the referees for their many useful suggestions.

[1] See, for instance, William James, ‘The One and the Many’ in William James, Pragmatism: A New Name for Some Old Ways of Thinking (1907) published as Pragmatism: A New Name for Some Old Ways of Thinking and the Meaning of Truth: A Sequel to Pragmatism (1975) at 63–79.

[2] See Larissa Behrendt, Achieving Social Justice: Indigenous Rights and Australia’s Future (2003) at 129–131; Deborah Bird Rose, Indigenous Customary Law and the Courts: Postmodern Ethics and Legal Pluralism (1996).

[3] Although I have stated this as a rather blunt coming together of two monistic systems, it is important to recognise that the systems which come together are also dynamic, interpretable and contextual. See, for instance, Karen Knop, ‘Here and There: International Law in Domestic Courts’ (2000) 32 NYU J of Int’l Law & Pol 501; Dianne Otto, ‘Everything is Dangerous: Some Poststructural Tools for Rethinking the Universal Knowledge Claims of Human Rights Law’ (1999) 5 Aust J of Human Rights 17.

[4] Jost Delbruck, ‘Transnational Federalism: Problems and Prospects of Allocating Public Authority Beyond the State’ (2004) 11 Indiana J of Global Legal Stud 31.

[5] See, for example, André-Jean Arnaud, ‘Legal Pluralism and the Building of Europe’ in Hanne Petersen & Henrik Zahle (eds), Legal Polycentricity: Consequences of Pluralism in Law (1995); Neil Walker, ‘The Idea of Constitutional Pluralism’ (2002) 65 Mod LR 317.

[6] For a summary of this literature, see Margaret Davies, Asking the Law Question: The Dissolution of Legal Theory (2nd ed, 2002) at 167–294.

[7] See, for instance, Peter Goodrich, Reading the Law: A Critical Introduction to Legal Method and Techniques (1986) at 220–221; Costas Douzinas, Ronnie Warrington & Shaun McVeigh, Postmodern Jurisprudence: The Law of Text in the Texts of Law (1991).

[8] On the issue of paradigm change in law, see Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalisation and Emancipation (2nd ed, 2002) at 7–20.

[9] There is a tendency to label any anti-monistic style of thought as postmodern: however, much legal pluralism is empirical in nature – based on observation of modes of social organisation – while postmodernism critiques the objectivist paradigm upon which much empiricism is based. Both may be pluralistic, though often in different senses. This is not to say that there is no overlap, though, as legal pluralism may be based on a postmodern critique of discourse and the subject (the style of legal pluralism I prefer) and empirical analysis may be situated within a postmodern critique of its own foundations. One conscious effort to associate postmodernism with pluralism is represented in the work of Boaventura de Sousa Santos. See, for instance, Santos, ‘Oppositional Postmodernism and Globalizations’ (1998) 23 Law & Social Inquiry 121. However, as Santos himself notes, his work has been criticised for being both too modernist and too postmodernist. See Santos, above n8 at 14.

[10] Desmond Manderson, ‘Beyond the Provincial: Space, Aesthetics, and Modernist Legal Theory’ [1996] MelbULawRw 18; (1996) 20 MULR 1048; William James, A Pluralistic Universe (1977, first published 1909).

[11] The point that ‘pluralism must itself be pluralistic’ is also made by Emmanuel Melissaris, ‘The More the Merrier? A New Take on Legal Pluralism’ (2004) 13 Soc & Leg Stud 57 at 58.

[12] In a different but related context (the conflict between seeing gender as a stable dualism, and seeing it as radically fluid) Wendy Brown employs the musical metaphor of counterpoint: ‘At once open-ended and tactical, counterpoint emanates from and promotes an anti-hegemonic sensibility and requires a modest and carefully styled embrace of multiplicity in which contrasting elements, featured simultaneously, do not simply war, harmonize, blend or compete but rather bring out the complexity that cannot emerge through a monolithic or single melody.’ See Wendy Brown, ‘Gender in Counterpoint’ (2003) 4 Feminist Theory 365 at 367.

[13] The term ‘singular plural’ is from Jean-Luc Nancy, Being Singular Plural (2000). While I have framed the issue as the co-existence of a plurality of voices within a philosophy or ideology of singularity, Nancy’s point is more radical – that the singular is inherently or conceptually plural. Law is also ‘singular plural’ in this more radical sense, as I explain in Part 5 of this article.

[14] By saying that the singular attitude can co-exist with the plural in a ‘loose structure’ I mean that the appreciation of diversity can co-exist with our frequent assumption that things form a system – but the diversity can never be reduced to that system or explained solely in its terms.

[15] HLA Hart, The Concept of Law (2nd ed, 1994); see also Hans Kelsen, Pure Theory of Law (1967).

[16] In this article, I use the terms ‘monism’ and ‘centralism’ interchangeably. Monism (opposed to pluralism) refers to the idea that there is a single concept of law adequate to the task of defining law. Centralism (opposed to decentralist models) is the idea that all law has a centre of authority – state, sovereign, or basic norm. A monist account of law is not necessarily centralist, as it is possible to think of a singular account of law which does not trace the source of all law to a central institutional point (arguably, for instance, secular natural law theory). Whether it is possible to have a centralist model of law which is not monist is debatable.However, in the present historical context of Western legal thought, the prevailing monistic concept of law (positivism and its variants) is also typically centralist in that it defines law in terms of its relationship to a central authority.

[17] For an analysis of the disciplinary boundaries of law see Douglas W Vick, ‘Interdisciplinarity and the Discipline of Law’ (2004) 31 J of Law & Society 163 at 174–181.

[18] See, for example, Richard A Posner, Economic Analysis of Law (3rd ed, 1986); John Finnis, Natural Law and Natural Rights (1980).

[19] See generally Luke McNamara, ‘ “Equality Before the Law” in Polyethnic Societies: The Construction of Normative Criminal Law Standards’ (2004) 11 (2) E-LAW: <http://www.murdoch.edu.au/elaw/issues/v11n2/mcnamara112.html> .

[20] This is not to suggest that such scholarship is entirely singular in its outlook about law – as indicated above, the ‘singular plural’ outlook is perhaps the most common.

[21] Susan Armstrong, ‘Is Feminist Law Reform Flawed? Abstentionists and Sceptics’ (2004) 20 Aust Feminist LJ 43; Joanne Conaghan, ‘Reassessing the Feminist Theoretical Project in Law’ (2000) 27 J of Law & Society 351 at 362.

[22] Richard Abel, ‘A Critique of Torts’ (1990) 37 UCLA LR 785; Catharine MacKinnon famously referred to male domination as ‘metaphysically near perfect’, suggesting that there are few, if any, spaces within law or legal discourse for women to find their own identity. See Catharine MacKinnon, ‘Feminism, Marxism, Method and the State: Toward Feminist Jurisprudence’ (1983) 8 Signs 635 at 638.

[23] A classical statement of the position that critics of law, in particular feminist critics, should de-centre law is Carol Smart, Feminism and the Power of Law (1989).

[24] William R James as cited in James O’Shea, ‘Sources of Pluralism in William James’ in Maria Baghramian & Attracta Ingram (eds), Pluralism: The Philosophy and Politics of Diversity (2000) at 27.

[25] John Griffiths, ‘What is Legal Pluralism?’ (1986) 24 J of Legal Pluralism & Unofficial Law 1 at 39. See also McNamara, above n19.

[26] Id at 4.

[27] Legal monism and legal centralism are true because legal agents act on a daily basis as if the law were singular and derived solely from the state. To phrase it in Cover’s terms, positivism constitutes powerful constitutive narrative about law. However, it is by no means the only narrative, and therefore, not the only possible truth – as Griffiths illustrates. See Robert M Cover, ‘Nomos and Narrative’ (1983) 97 Harv LR 4 at 10.

[28] Griffiths, above n25 at 5.

[29] Griffiths also gives the example of a colonial power which (unlike the British in Australia) imports its own law, but recognises the operation of Indigenous law insofar as it affects the Indigenous population. He says such legal pluralism ‘is justified as a technique of governance on pragmatic grounds’. However, it is ‘weak’ because the authority of the Indigenous law is subordinate to the authority of the colonial law – which retains its singularity. Ibid.

[30] See below n62.

[31] Griffiths, above n25 at 38.

[32] Griffiths, above n25; Sally Engle Merry, ‘Legal Pluralism’ (1988) 22 L & Soc R 869; see also Christoph Eberhard, ‘Towards an Intercultural Legal Theory’ (2001) 10 Soc & Leg Stud 171.

[33] For an anti-positivist and critical approach to the issue of plural normative systems, see Eve Darian-Smith, ‘Law in Place: Legal Mediations of National Identity and State Territory in Europe’ in Peter Fitzpatrick (ed), Nationalism, Racism, and the Rule of Law (1995).

[34] See, for instance, Manderson, above n10, especially 1062ff; Jørgen Dalberg-Larsen, The Unity of Law: An Illusion? On Legal Pluralism in Theory and Practice (2000) at 103–106; Marth-Marie Kleinhans and Roderick MacDonald, ‘What is a Critical Legal Pluralism?’ (1997) 12 Canadian J of Law & Society 25.

[35] It has been suggested to me that the pluralism of law’s origins is a third sense of legal pluralism. However, I regard plural foundations of law as one aspect of its inherent pluralism because, ultimately, it is not possible to distinguish between the origins of law and the factors necessary to its ongoing maintenance. Put another way, the ‘irreducible other’ of the legal system is its social and political environments, which account for both the origins and the current nature of law. See Jacques Derrida, ‘Declarations of Independence’ (1986) 15 New Political Science 7; Jacques Derrida, ‘Force of Law: The Mystical Foundations of Authority’ (1990) 11 Cardozo LR 920.

[36] Chantal Mouffe, ‘Democracy and Pluralism: A Critique of the Rationalist Approach’ (1995) 16 Cardozo LR 1533 at 1535; see also Chantal Mouffe, ‘Political Liberalism, Neutrality and the Political’ (1994) 7 Ratio Juris 314.

[37] Cover, above n27. I will explain the important contribution of this article in Part 5.

[38] John Stuart Mill, ‘On Liberty’ (1859) in Mary Warnock (ed), Utilitarianism (1962) at 135.

[39] See Will Kymlicka & Raphael Cohen-Almagor, ‘Ethnocultural Minorities in Liberal Democracies’ in Maria Baghramian & Attracta Ingram (eds), Pluralism: The Philosophy and Politics of Diversity (2000) at 228–250.

[40] Griffiths, above n25 at 7.

[41] HLA Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harv LR 593.

[42] Margaret Davies, ‘Legal Separatism and the Concept of the Person’ in Tom Campbell & Jeffrey Goldsworthy (eds), Judicial Power, Democracy and Legal Positivism (2000).

[43] Irene Watson, ‘Power of the Muldarbi, the Road to Its Demise’ (1998) 11 Aust Feminist LJ 28.

[44] Friedrich W Nietzsche, ‘The Gay Science’ (originally published 1882) aphorism 322, in Friedrich Nietzsche, On the Genealogy of Morals, and Ecce Homo Walter Kaufmann (ed), (1989) at 195.

[45] Such legal systems included the distinct systems of equity and common law, ecclesiastical law and late feudal/manorial law.

[46] Jeremy Bentham, ‘Papers Relative to Codification and Public Instruction: Including Correspondence with the Russian Emperor, and Divers Constituted Authorities in the American United States’ in John Bowring (ed), The Works of Jeremy Bentham Vol 4 (1962) 451 at 459–460.

[47] For a discussion of the ‘aesthetic of coherence’ in legal thought see Manderson, above n10 at 1053–1054.

[48] James, above n24 at 26.

[49] Friedrich W Nietzsche, Human, All Too Human (Hollingdale, trans) (1986) at 195.

[50] Manderson, above n10.

[51] Joseph Raz, ‘Legal Principles and the Limits of Law’ (1972) 81 Yale LJ 823 at 842 (emphasis in original). Examples of such tests would be Austin’s sovereign commands, Hart’s complex of primary and secondary rules, and Kelsen’s basic norm.

[52] Melissaris, above n11 at 58.

[53] Eugen Ehrlich, Fundamental Principles of the Sociology of Law [1913] (trans Walter Moll) (1962) at 488.

[54] Gunther Teubner, ‘The King’s Many Bodies: The Self-Deconstruction of Law’s Hierarchy’ (1997) 31 L & Soc R 763 at 768–769.

[55] Tom Campbell has attempted to revitalise legal positivism in The Legal Theory of Ethical Positivism (1996).

[56] A great deal of attention has been devoted to this issue of autonomy, in particular in relation to the theory of legal autopoeisis. I do not reject outright these claims of autonomy: autopoetic theory as described by Gunther Teubner sees law as at once open and closed. See Gunther Teubner, ‘Introduction to Autopoetic Law’ in Gunther Teubner (ed), Autopoetic Law: A New Approach to Law and Society (1988); Gunther Teubner, ‘The Two Faces of Janus: Rethinking Legal Pluralism’ (1992) 13 Cardozo LR 1443.

[57] Manderson, above n10 at 1064; I should note that Anglo-American legal positivism does understand law to be a social phenomenon, but at the same time emphasises the institutional separation of law from the social realm generally conceived.

[58] Peter Fitzpatrick, ‘ “We Know What it is When You Do Not Ask Us”: Nationalism as Racism’ in Peter Fitzpatrick (ed), Nationalism, Racism, and the Rule of Law (1995).

[59] See, for instance, Gunther Teubner, ‘ “Global Bukowina”: Legal Pluralism in the World Society’ in Gunther Teubner (ed), Global Law Without a State (1997). Teubner envisages the changes to law implied by a global legal order, noting in particular, that global law will need different conceptions of the ‘boundaries’, ‘sources’, ‘independence’ and ‘unity’ of law at 7–8.

[60] Irene Watson comments that ‘[n]ative title is the domain of those who want to establish space rocket launching facilities and nuclear waste dumps; of those who want it named and determined for their short time and space on earth’: ‘Buried Alive’ (2002) 13 Law and Critique 253 at 260. See also Lee Godden, ‘Grounding Law as Cultural Memory: A ‘ “Proper” Account of Property and Native Title in Australian Law and Land’ (2003) 19 Aust Feminist LJ 61.

[61] Mabo v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1.

[62] ‘[T]he most remarkable achievement of the “ground-breaking” case of Mabo was, not the long overdue legal recognition of Aboriginal prior ownership to Australian land, but the deftness with which the majority judges managed to encircle the symbol of the nation without falling prey to the open secret of the dubious foundation of British sovereignty.’ Sangeetha Chandra-Shekeran, ‘Challenging the Fiction of the Nation in the “Reconciliation” texts of Mabo and Bringing Them Home’ (1998) 11 Aust Feminist LJ 107 at 123. See also Irene Watson, ‘Indigenous Peoples’ Law-Ways: Survival Against the Colonial State’ (1997) 8 Aust Feminist LJ 39; Michael Detmold, ‘Law and Difference: Reflections on Mabo’s Case’ (1993) 15 Syd LR 158; Peter Fitzpatrick, ‘ “No Higher Duty”: Mabo and the Failure of Legal Foundation’ (2002) 13 Law and Critique 233; Stewart Motha, ‘The Sovereign Event in a Nation’s Law’ (2002) 13 Law and Critique 311.

[63] This is not to suggest that there is no problem independent of the positivist concept of law, just that this concept blocks any attempt at dialogue before it has started.

[64] Hilary Charlesworth, Madelaine Chiam, Devika Hovell & George Williams, ‘Deep Anxieties: Australia and the International Legal Order’ [2003] SydLawRw 21; (2003) 25 Syd LR 423; Devika Hovell, ‘The Sovereignty Stratagem: Australia’s Response to UN Human Rights Treaty Bodies’ (2003) 28 Alternative LJ 297.

[65] Margot Stubbs, ‘Feminism and Legal Positivism’ (1986) 3 Australian J of Law & Society 63; Margaret Thornton, ‘The Cartography of Public and Private’ in Margaret Thornton (ed), Public and Private: Feminist Legal Debates (1995).

[66] Michel Foucault, ‘Two Lectures’ in Michael Foucault, Power/Knowledge: Selected Interviews and Other Writings 1972–1977 (1980) at 78–108, especially 95–100.

[67] Maureen Tehan, ‘A Hope Disillusioned, An Opportunity Lost? Reflections on Common Law Native Title and Ten Years of the Native Title Act’ [2003] MelbULawRw 19; (2003) 27 MULR 523.

[68] A criticism which has been levelled at the non-positivist, but still monistic, thought of Ronald Dworkin.

[69] I am indebted to one of the referees for drawing this point to my attention.

[70] Arnaud, above n5; Darian-Smith, above n33.

[71] See Darian-Smith, above n33.

[72] See in particular the compelling discussion by Neil Walker, above n5. Walker suggests that the concept of sovereignty is not necessarily superceded by ‘post-state constitutional polities’, but could undergo a conceptual transformation so that ‘it becomes possible to conceive of autonomy without exclusivity – to imagine ultimate authority, or sovereignty, in non-exclusive terms’ at 345–346. See also Massimo La Torre, ‘Legal Pluralism as Evolutionary Achievement of Community Law’ (1999) 12 Ratio Juris 182.

[73] Noel Whitty, Thèrése Murphy & Stephen Livingstone, Civil Liberties Law: The Human Rights Act Era (2001) at 1; see also Walker above n5.

[74] Culminating in the Countryside and Rights of Way Act 2000 (UK).

[75] See, however, Luke McNamara, above n19, for a recent discussion of the relevance of legal pluralism to Australian law.

[76] Santos, above n8; Santos, above n9.

[77] Melissaris, above n11; Brian Z Tamanaha, A General Jurisprudence of Law and Society (2001).

[78] Merry, above n32; Masaji Chiba, ‘Other Phases of Legal Pluralism in the Contemporary World’ (1998) 11 Ratio Juris 228; see also Warwick Tie, Legal Pluralism: Towards a Multicultural Conception of Law (1999) at 59–92, who employs a slightly different scheme of categorisation.

[79] For example, MB Hooker, Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws (1975); June Prill-Brett, ‘Indigenous Land Rights and Legal Pluralism among Philippine Highlanders’ (1994) 28 L & Soc R 687; Erin Moore, ‘Gender, Power, and Legal Pluralism: Rajasthan, India’ (1993) 20 American Ethnologist 522; Chiba, above n78.

[80] Sally Falk Moore, Law as Process: An Anthropological Approach (1978); Sally Falk Moore, ‘Certainties Undone: Fifty Turbulent Years of Legal Anthropology, 1949–1999’ (2001) 7 J of the Royal Anthropol Inst 95.

[81] Systems theory is one kind of response to the traditional notion of law as objectively static and centralist but – due to reasons of space – I am unable to consider it in detail in this article. See Teubner’s provocative article, ‘The King’s Many Bodies’, above n 54 at 764–767.

[82] Such as international law, state law, Indigenous law, human rights law, regional law, social customs, regulated institutions, and so forth.

[83] Brian Tamanaha, ‘A Non-Essentialist Version of Legal Pluralism’ (2000) 27 J of Law & Society 296.

[84] Paul Ricoeur, ‘The Plurality of Sources of Law’ (1994) 7 Ratio Juris 272.

[85] There are some examples of gender being explicitly addressed in legal pluralist literature. See, for instance, Ambreena Manji, ‘Imagining Women’s “Legal World”: Towards a Feminist Theory of Legal Pluralism in Africa’ (1999) 8 Soc & Leg Stud 435; Anne Griffiths, ‘Reconfiguring Law: An Ethnographic Perspective from Botswana’ (1998) 23 Law and Social Inquiry 587.

[86] Kleinhans & MacDonald, above n34; Manderson, above n10; Tamanaha, above n83; Melissaris, above n11.

[87] Santos, above n8; Tamanaha, above n83; Kleinhans & MacDonald above n34.

[88] See Max Horkheimer, ‘Traditional and Critical Theory’ in Max Horkheimer, Critical Theory: Selected Essays (1968).

[89] Kleinhams & MacDonald, above n34 at 39.

[90] Id at 38–40.

[91] Manderson, above n10.

[92] Tamanaha, above n83 at 315.

[93] Mouffe, ‘Democracy and Pluralism’, above n36 at 1535.

[94] Cover, above n27.

[95] Id at 11.

[96] Id at 33.

[97] Id at 42.

[98] Id at 54.

[99] The literature is too vast to cite, but see, for instance, Drucilla Cornell, The Philosophy of the Limit (1992); Peter Fitzpatrick, Modernism and the Grounds of Law (2001).

[100] This ‘axiological’ pluralism has been remarked upon by a number of writers following Derrida’s important contribution in ‘Force of Law’, above n35. See also Margaret Davies, Delimiting the Law: Postmodernism and the Politics of Law (1996); Fitzpatrick, above n99.

[101] Although this is a view adopted by Ronald Dworkin, I do not regard his work as reflecting a pluralist ethos, since he reduces the pluralism of the ‘community’ into a singular entity with a definable set of values. See Ronald Dworkin, Law’s Empire (1986).

[102] A good recent example is the interpretation of ‘man’ and ‘woman’ in the case Re Kevin (Validity of Marriage of Transsexual) (2001) 165 FLR 404; Attorney-General for the Commonwealth v Kevin and Jennifer [2003] FamCA 94; (2003) 172 FLR 300.

[103] It might even be said that some varieties of legal pluralism are in fact characterised by an ‘ethos of singularity’, insofar as they understand plural normative orders to comprise a theoretical totality rather than an irreducibly open multiplicity.

[104] The contradiction arises simply by virtue of the monistic assumption that state law covers the field, space or territory completely. Speaking as though there is another law within the space of a state law is, by this account, nonsensical.

[105] Behrendt, above n2 at 131.

[106] Sentencing circles have existed in Canada for some time, and started to appear in Australia in the 1990s in both remote and urban areas. See Elena Marchetti & Kathleen Daly, ‘Indigenous Courts and Justice Practices in Australia’ May (2004) Trends and Issues in Crime and Criminal Justice, No 277.

[107] If this sounds one-sided, it is because it is: obviously I write from the perspective of a theorist of non-Indigenous law and am not in a position to evaluate the need for change from another person’s perspective. Indigenous people have had the difference of white law forced upon them, while we have the luxury of thinking and theorising before we need to acknowledge difference.

[108] Marchetti & Daly, above n106 at 4–5.

[109] In contrast, in the more economically significant area of native title, there may have been a recognition of legal difference, but this has been fully subordinated to white bureaucracy and white legal dominance.

[110] Marchetti & Daly, above n106 at 5.

[111] Manderson, above n10 at 1068.


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