who's afraid of legal pluralism?

WHO'S AFRAID OF LEGALPLURALISM?Itl. IntroductionFranz von Benda-Beckmannlo the roughly lhirty years in which lhe concepl legal pluralism has beeo used inlegal and social scientific writings, il has become a subject of emotionally loadeddebales. The issue mostly addressed in lhese debales, and lhe one dislioguishing ilfrom lhe common discussions over the concepl of law, is whether or nol one isprepared to admil lhe theoretical possibility of more than one legal order ormechanism wilhin one socio-political space, based on differenl sources of ultimatevalidity and maintained by forms of organization other Ihan the state. Thoughoriginally introduced Wilh modesl ambition as a 'sensitising' concept, drawingattention to the frequent exislence of parallel or duplicalory legal regulations withinone political organisation, the discussion is increasingly dominaled by the exchangeof conceptual a priori 's and of stereotypes over those using them. Rather thanlooking at the heuristic value of the concept for describing and analysing complexempirical situations, the conceplual slruggles seem lO create two camps, effacing lhemany differences in assumptions and approaches to law in society lhal can be foundwithin both these camps. Starting with Roberls' review of the Bellagio papers(1986) and appearing even more slrongly in Tamanaha's paper on lhe 'folly oflegal pluralism' (1993), one can even observe the emergence of a bogeymancalled 'the legal pluralists', the 'legal pluralist movement' or a 'legal pluralislproject' (Roberts 1998: 96). This is associaled with the Commission on Folk úiwami Legal Pluralism and the Journal o/ Legal Pluralism and ilS members areI Slightly revised versionof lhe paper presented al the XlIIlh Congress of theCommission on Folk Law and Legal Pluralism, 7-10 April, 2002, Chiangmei,Thailand. I gratefully aclcnowledge the thoughtful comments given by GordonWoodman and Jacques Vanderlinden on the earlier version.1

WHO'S AFRAID OF LEGAL PLURALlSM?JOURNAL OF LEGAL PLURALlSMFranz von Benda-Beckmann 2002 - nr. 47accused of engaging in sorne ill-conceived enterprise of irresponsibly broadeningthe concept of law and equalising normative orders that are fJ¡ndamentallydifferent. It is argued that ca11ing normative orders other than state law, or notrecognised as law by the state, nevertheless 'Iaw', is ethnocentric and obscures thefundamental differences in form, structure and effective sanctioning between statelaw and other normative orders (see Tamanaha 1993; Roberts 1998; Yon Trotha2000).In my paper 1 want to continue the ongoing discussions. (See Yanderlinden 1971,1989, 1998; Fitzpatrick 1983; J. Griffiths 1986; Moore 1978a; Merry 1988; F.von Benda-Beckmann 1983, 1988, 1994, 1997; De Sousa Santos 1987; C. Fuller1994; Woodman 1998; Roberts 1998; Tamanaha 1993, 2000, 2001; K. vonBenda-Beckmann 200 la, b; A. Griffiths 2002.) 1 shall analyse the reasons givenfor and against the concept legal pluralism and clarify my own views on its valueand limitation, building on earlier ideas (F. von Benda-Beckmann 1979, 1983,1986, 1988,1992a,b,c; 1994, 1997, 2001a). In my view, the discussions are toostrongly fixated on the law-state link and give too liule aUention to other aspectsof the definition of law that are equally importam. There is insufficient attention. to the question of the kind of concepl one tries to develop or use, and for whatreason, and what one understands as 'analytical' concepts. I shall therefore discussthese issues before I review the arguments for and against the state-law linkage. Inconclusion I shall come back to the division of legal and social scientists into apluralist on non-pluralist camp and show how liule usefui such division is.2. Preliminary questionsWe a1l know that in most societies, and probably in aH contemporary societies,there is a great complexily of cognitive and normative conceptions. Theseconstilute forms of Jegitimate social, economic and political power andorganisation and provide standards for permissible action and for the validity ofIransactions, as well as ideas and procedures for dealing with probJematicsituations, notably lhe management of conflict and disputes. Such multiplicity ofconceptions may exlend 10 claims to give meaning and regulate a whole socialuniverse; they may also be limited to specific social domains such as marriage orproperty transactions or even more Iimited rule complexes. They may claim to,and may actually operate in socio-polítical and geographical spaces oC differentsize, within the boundaries of nation states, in infra-statal social fields or intransnational ones (Merey 1992; K. von Benda-Beckmann 2001; A. Griffiths2002). We also know that in many parts of the world, such complex situationsantedate the establishment oC a colonial or modern state, as does for instance theco-exislence of religious and non-religious conceptions in Indonesia. While social- 38 ­¡¡tfand legal scientists' perceptions of such complexity and its implications for furtherconceptual, methodological and theoretical ideas vary significantly, we do nothave lO prove 10 anyone that it is lhere. The question is: How do we get to gripswith this complexity? With which categories and concepts can we make sense ofit, conceptually and theoretically? This raises four major sets of questions.1) How far can we get with the concept of law? Which criteria should givesocial phenomena the quality of being 'legal', and how do we distinguishsuch legal phenomena from other, non-legal ones?2) How do we deal with difference? Since the coricept of law, howevernarrowly or broadly defined, will have to encompass sorne varialÍon ofsocial phenomena, how do we indicate the sets of criteria in which thesephenomena vary?3) What type of legal complexity do we call legal 'pluralism'? Does thisconcept, or other frequently used terms Iike 'multiplicity' or 'plurality',suffice for dealing with the complexity we are confronted with? Doeslegal pluralism require the existence of more than one legal system ororder, or are 'legal mechanisms' sufficient, and can one speak of legalpluralism within one legal order? (see Woodman 1998).4) And, perhaps the most important yet leasl discussed question: what does'existence' or 'co-existence' oC law or legal orders mean (F. von Benda­Beckmann 1979, 2001)?These questions are important. But 1 would likc to point out right from thebeginning thal whatever our answers will be, their reach will be limitect'. Whileour conceptual choices concerning law and legal pluralism are based on a numberof methodological and theoretical assumptions, these must be supplemenled by amore encompassing social theoretical understanding of the social world. Theconcepts of 'Iaw' or 'legal pluralism' are only a part of our wíder conceptual andanalytical tools. Neither will these concepts alone fully adequately capture ourresearch interests. I mention these self-evident points here because manyconceptual discllssions are carried out as if these single concepts stood for thewhole of theoretical understanding or research interes\.Approaching the conceptual issueThere is another preliminary point I would like to emphasise. Words and conceptshave no c1aims to an ínherent truth. They must be measured against theirambitions and evaluated ror their usefulness for the enterprise actors are engagedin. I shall therefore briefly c1arify my own position and reasons for choosing my- 39­

WHO'S AFRAID OF LEGAL PLURALlSM?Franz von Benda-BeckmannJOURNAL OF LEGAL PLURALlSM2002 - nr. 47own c~nce~tual approach. 2 Like many anthropologists and, I would assume, manylegal hlstonans an~ compa.ra~ive.legal scholars, I am concerned with concepts Ihalare usefui for lookmg at slmllanty and difference in cross-societal and diachronicc~mparison. My concern is lo work with a concept that ís broad enough to captureslm~le and co~pl.ex le~al configurations. I am interested in understanding and, ifpos~lble.' ~xplammg dlfferent legal configurations and the ínterdependence andsocial slgmfica~ce of t~eir ~Iements. I would retain this comparative perspectivealso when 100kll1g al Slluallons or processes of change in one rather small-scalespatial and temporal selling. For these purposes I find a concepl 'of law Ihat is nothnked. to, the stale by .~e~nitíon and t~at is broad enough to include 'legalplurahsm a useful senslllsmg and analYl1cal tool. I do not see it as a theory orexpl~atío~ (see also ~eertz 1983; Greenhouse 1998; Rosen 1999), but only as astartmg pomt for lookmg at the complexities of cognitive and normative orders,~nd Ihe. even more complex ways in which these become involved in humanInteracllon.But I am perfecdy aware that others dealing with law may need a differelllconce~t of law for .differ~nt purposes. Those working as guardians and operatorsof.a. smgle nor~atlve umverse, such as academic or practical lawyers. judges.rehglous oro tradltional authorities, mostly do not and cannot accept the nolion oflegal plurallsm, because it is lheír job to leach or lo appl)' 'the law' as defined inlhe normative .Iogic of theír own law discourses. 'Their' law will probably be, andhave lO be dlfferent from mine. Judges, for inslance, have to make choicesthrough which lhe complexily of legal pluralism is reduced lO 'the' law forproducing the rationalisation and juslificalÍon of a Court decision. [ also appreciateth~t those engaged in f~r.~ulating ~hat the law should be or become _ legalphllosophers or legal pohucJans - wllI often claim an exclusive slatus for the law~ey propagale, and that this will lead them to a conceptualisation of law quitedlfferent from the one I prefer.I W~nt to. emphasise .that these are different academic and professional ways ofdeahng wlth law, whlch are also reflected in different conceptual and theoretical2 Whe?" I s~bmitled my PhD tllesis in 1970, l called it "Legal pluralism inMala:'1 . Thls book was stiH written from a lawyer's perspective, and it lefl theqU~S110~ open whether one could speak of legal pluralism only if state law, vialeglslallon oro ~OUrt decisions, recognised non-stale law, or also independent ofsuch reco~nlllon (1970:22, 46). When I later melamorphosed into an~nthropoJoglSt and lhought aboul conceptualising "Iaw" for historical andtntercultural comparison, I found il more useful to dissociate the concept of lawfrom the state (1979, 1983, 1986). .- 40 ­assumptions. While the subject maller, law, law application etc. does notdistinguish legal anthropology from legal science, the way in which legalanthropology conceives law as variable, the questions it asks about law, and themethodology on which research is based, do distinguish it from legal science, atleast from the normative and dogmatic sciences of law, which elaborate correctinterpretations of general legal abstractions with respect to concrete problematicsituations and philosophical refiections on what and how law should be. 3These differences in objeclive and approach should be kept apart, however greatthe shared interesl in the subject maller may be, and however much one can learofrom the other. But il does indeed require "lhe disaggregalion of 'Iaw' and'anthropology' as disciplines so as lO connecl lhem lhrough specific intersectionsrather than hybrid fusion" (Geertz 1983: 232).Many debates and misunderstandings between legal scientists and legalanthropologists. including the one over legal pluralism, have suffered from thetendency to bring these different objectives and resultant concepts down onto aone-dimensional level of discussion, in which authors look tor 'the one' correct orusefui concept for both lawyers and social scienlists, without appreciation of thefact that lhe other is engaged in a different enterprise. 4 It is particularly under thename of 'theory' that roany scholars c1aim universal value for their concept in anabsolutist manner, struggling for conceptual hegemony. This not only is anobstrucling block on the road to good legal anthropology; it also makes dialogueand mutual learning difficult. s In their mutual relations and discussion, lawyersJ A qualifier should be added. The category of legal science is potentially wide. Itmay ¡nelude studies such as history of law, sociology of law, or legal theory, andof course also a comparative social scientific anthropological study of law. Seealso F. von Benda-Beckmann 2001b.4 [n the second chapter "Lawyers and anthropologists" of her recent book, LauraNader (2002:73) very emphatically makes the same point and criticizes "thecacophony in legal and anlhropological scllolarship on law and society". In hisdiscussion of legal pluralism and the polycentricity of law, Zahle (1995: 197)shows a clear awareness of these differences. This ¡s, however, comparativelyrare.s Admittedly, many misunderslandings also derive from a too Iimited knowledgeand insight into what lhe other is doing, and from the Stereolypes which both haveof the others' assumptions and subjects. Much anthropology has been informed bylegalistic concepts and assumplions. This has been the price anthropologists havepaid for disregarding law, and delegating it tO tlle domain of legal science,- 41 ­

WHO'S AFRAID OF LEGAL PLURALISM?Franz von Benda-Beckmannand legal anfhropologisls should lake more seriously Ihe job in which Ihe olher isengaged. lf it is one's job lO mainlain the slate law ideology, one cannot in thesame action of polilical relevance regard non-recognised law as law. If one has tochoose 'Ihe' correcl I

WHO'S AFRAID OF LEGAL PLURALlSM?Franz von Benda-BeckmannJOURNAL OF LEGAL PLURALlSM2002 - nr. 47BOlh questions have been and remain contested, much more so than was/is thecase with other concepts, such as the 'family', 'property', 'religion', or'economy' .10 The answers given 10 them oflen given gel imermingled. Thearguments given for Iinking law lO the state may lead aUlhors to both outcomes;thal ¡s, insisling lhal for analytical purposes law needs 10 be Iinked lo the slate, orto denying the usefulness of defining law analyticalIy. Before I tum to thedifferent reasons for and against the state-linked concept of law, 1 want to addressthe question of what we are actually talking about when we speak about law orlegal pluralism as analytical concepts.The implications o/ la", as an analytical conceptThe character of an analytical conceptualisation of law has been welJ expressed by.Pospisil:Law as a theoretical and analytical device is a concept whichembraces a category of phenomena (ethnographic facts) seJectedaccording to the criteria the concept specifies. Although it iscomposed of a set of individual phenomena, the category ilself isnot a phenomenon - it does not exist in the outer world. Theterm 'Iaw' consequently is applied to a construct of the humanmind for lhe sake of convenience. The justificalion of a conceptdoes not reside in ils existence outside lhe human mind, but inits value an as analytical. heurislic device. (Pospisil 1971: 39)I have adopled lhis as a point of depa.rture as welI. aJthough it led me lO aconceplualisation quite different from Pospisil's (F. von Benda-Beckmann 1979:25).It is important to speIl out Ihe implications that foIlow from such conceptualunderslanding. As analytical concepts, law and legal pluralism only point at thetheoretical possibility that what we caplure with the concept may exiSI empirically.Such concepts of law, or for lhal maner of legal pluralism, do nol tell us anything10 Geertz also remarked thal whilethe problematic relationship between rubrics emerging from oneculture and practices met in anolher has been recognised neitheras avoidable nor falal in connection with 'religion', 'family','government', 'art' and even 'science', it remains oddlyobslruclive in the case of 'Iaw'. (I 983: 168)- 44 ­about law or its social significance in any society. They do not carry with it theassertion that all societies have law. They are only a means to see whether theyhave such phenomena as specified by the concepto In the discussions on legalpluralism these implications are rarely taken up consistently, and there is afrequenl [ailure 10 distinguish analytical from empirical legal configurations. 11This has led to many misunderstandings.l. Sorne aUlhors direclly identify desirable or undesirable empiricalconslellations of legal pluratism with lhe concept. 12 But lhe concept of lawor legal pluralism cannot be blamed for empirical conditions that areabhorred or found attractive for political or moral reasons, just as other conceptssuch as economy or political system cannot .be idenlified with aspecific empirical economic or political system (see F. von Benda­Beckmann 1997). Analytic distance, towards state and other law, avoids ascientific justification of partisan views on whatever la",. Such justifications11 Tamanaha's recent calI for a non-essentialist, analytical definition thus is not asoriginal as he pretends. He critiques definitions thal conceptualise law eilher. asabstractions from lived praclices or as institutionalised norm enforcement, statmgthat the extent to which law enforcement is institutionalised, to which law is or isnot con'gruent with social practices, and to which it has those function~ t?atfunctionalist definitions incorporate into the concept, should be treated as vanauonin law rather than a constitutive element. Law should be eharacterised by a set ofcriteria; eoncepts thal specify what law ¡s, and what legal pluralism emails, .arenot testable or falsifiable: they are more or less useful, and lheir use value IS afunction of the purposes for which they are conslrucled (2000:300). His point isthat most concepls of law explicitly or implicitly assumed by "legal pluralisls" ­and for that maller, one may add, of most writers conceptualising law. pluralist ornot - are essentialist in nature (2000:299). This may be true for sorne authors,but certainly nol for myself (1979, 1983, 1986).12 Sack (1986: 1) had said that legal pluralism involves an ideological commitment.Like Woodman (1998:48), 1 do nol see this f10wing out of the conceptualdiscussion. BU! it should be seen that in many instances the idea of legal pluralismis instrumentalized for moral and polítical purposes. This is partly done for thepurpose of achieving more recognition for legal orders not recognized by the stale(see e.g. Hellum 1995:25; Sinha 1995: 48,49; Sheleff 2000: 172). In OIher cases,however, legal pluralism is seen as a symbolic recognition that mutes more radicalpolilical and economic c1aims of oppressed population groups (see Jackson 19~2,WiIliams 1992). Legal pluralism mayal the other hand also evoke negatlve.¡fconnotationsbecause it implies the recognition of socially or morally repugnantvalues such as caste or gender differences.- 45 ­

WHO'S AFRAID OF LEGAL PLURALISM?JOURNAL OF LEGAL PLURAUSMFranz von Benda-Beckmann 2002 - nr. 47shoUI~ be based on political and moral, bUl no! analytical grounds. An~alYl1cal approach is different from ideological or religious points of view;~lfferent from .the views shared and propounded by the dominant legalIdeology, bUI d¡fferent also from those of the champions of traditional Jawor the rights of indigenous peoples. To give moral or political value to sornelaw, lO stale law hegemony or lO plural legal situations,is a different'profession' from creating and using analytical conceplual schemes (F. vonBenda-Beckmann 1997: 31).132. A variant of this argumentationis the often heard critique that studies oflegal pluralism would imply the exislence of distincl unconnected legalsystems and/or neglect power differences between lhem.' 4 Apart from thefac.l lh~t .lhis st~le.ment is not lrue empirically, it points al an unwillingnessor mabllny lo dlSltnguish political (in)equality of empirical normalive ordersfrom analytical equalily or equivalence of a concepl lhat can, and has lO,accomodate variation in political significance of empirical normalive orders.Analytical equivalence (calling such social phenomena law or legal) willalways be different from empirical variation and (possible)morphological, functional and polit¡cal differences or equivalences,whelher one reduces law to slale law or not (F. von Benda-Beckmann1979: 8,9; see also K. von Benda-Beckmann 200Ib).3. Misunderstandings also arise when lhe distinction belween empirical. phenomena and analYlical concepls is lreated as one between differentempírical phenomena, nolably belween ideoJogy or normalive phenomena(lhe Oughl) and 'real' phenomena (the Is). This seems lO be lhe case in J.Il. This view is al~o shared by Tamanaha in his recent publication in his plea for adlStanced, unsenumental view lowards differeOl forms of law (2000: 319).14 This critique is then also directed against lhe concept of pluralism ralher lhanthe conception of law.B~th words, pluralism and dual, carry connolations of equali¡y lhatmlsrepresent the asymmetrical power relations lhat inhere in thecoex~stence of multiple legal orders. Various legal syslems maycoexlsl, as occurs in many colonial aitd poslcolonial states, but thelegal orders are hardly equaI. .... The aboye terms also imply thalcoexisting legal systems evolve independemly after coming inloconlacl with each other, a nolion thal misrepresents ... thatcoexisling legal orders evolve togelher. (Starr and Collier 1989:9).See a1so Fuller 1994:10; A. Griffiths 2002.Griffilhs' attack on the ideology of legal cenlralism and the contrastbetween such ideology, including the 'weak' legal pluralism constructedin state law, and 'strong' legal pluralism (see F. von Benda-Beckmann1983, 1988; also Tamanaha 1993). Such realist perspective runs into thedanger of nol taking normative phenomena seriously as 'real' or'empirical' and so Iimiting the understanding of .he social significance ofsuch phenomena. Moreover, pointing at the existence of other normativeordering or forms of social control cannol 'disprove' the ideology oflegal centralism or. state law exclusivity. Many adherents of suchcentralist ideology would willingly concede this, and may even agree thatthey are sometimes more important than 'Iaw', but they would not calllhem 'legal'. The 'legal' characler of such other normative forms canonly become visible once the criteria for 'legal' are explicated. If onereduces 'Iaw' to 'social control' (J. Griffiths 1984, 1986, Woodman1998) one does not answer to a hegemonic conceptual challenge.4. Another implication is that one cannot expect lhat empirical phenomenawould fh iOlo analytical calegories in a one-to-one manner. 15 One candevise analytical categories in a relatively c1ear manner, but empiricaldata will not always fall squarely and exclusively within only oneanalytical domain. Property rights, for instance, would qualify as legal,but they are obviously also economic, social and oflen polílica!. Bul lhatdoes not mean thal no usefuI analylical dislinctions could be madebelween lhe legal, economic and polílica!. It only shows lhat lhesecalegories are not mutually exclusive. This is also importaOl for lhediscussions of the interrelations between differelll legal forms wilhin aplural legal whole. Whether or nol differenl elements, such as folk law orslale law, are clearly and dislinclly discernible, whelher, how and inwhich contexts of social practices they become interrelated orcompounded in hybrid forms, cannot be inferred from lhe concept. Theseare empirical questions. In order to come lo a differentiated account,analylical distinclions have to be developed lhat indicate the dimensionsof variation in plural legal configurations (see below section 6).15 So l cannol agree wilh Woodman's statement that "lo invent a dividing linewhich did nol accord with a factual distinclion would be irraliona! andunscientific" (1998: 45).- 46 -- 47 ­

WHO'S AFRAID OF LEGAL PLURALlSM?Franz von Benda-BeckmannJOURNAL OF LEGAL PLURALISM2002 - nr. 473. Law as an analytical categoryIf law is to be an analytical concepl, the general shared properties of the concepthave lO be ciarified as well as the dimensions within which social phenomenasharing these properlies vary.Conceptual properties: What kind 01 social phenomena are 'law'?This fundamental question is rarely addressed in discussions of legal pluralism,although il has many consequences for one's conceplualisalion of pluralism andthe relalions belween law and social organisation. In the Iiterature, there seems tobe a general understanding thal law consists of rules and/or norms. In adc!ition,we are drowned in emphalic or malter-of-fact SlalemenlS aboul law as socialcontrol, law as culture, law as discourse, law as power, law as process. Suchslalemenls can be usefuI. They poinl al qualities and functions thal law, or al leaslmuch law, may have in actual life and Which may have been nol sufficiently been~ake~ i~IO accoun.l by olhers. But if one wants to avoid the reductionistic trap ofIdentlfymg law wuh process, culture, or social control, one has to say what is thispresupposed law that is also culture, process, power, social control, or whatspecific manifestation·or kind of power, process etc law ¡s.l.Aw as objectijied conceptionsI see law as a dimension of social organisation, rather lhan a specific domain.Law is lhe summary indication of those objeclified cognitive and normaliveconceptions for which validity for a certain calegory of people or territory isasserted. Conceplions are objectified or objeclivated, once lhe externalisedproducls of human activily anain the character of objeclivity (Berger andLuckmann 1967: 78). Cognitive conceptions state how things are and why theyare whal they are; nqrmative conceplions slate how things ought to be, must be orm~y ~e. I use Ihe term 'conceptions' as a colleClive lerm lhal.encompasses rules,pnnclples. categories, concepls, standards, nolions, schemes of meaning (seeBerger and Luckmann 1967; 1986: 96). Legal phenomena are cognitive andnormative conceptions Ihat are qualified by a number of specific criteria (see F.von Benda-Beckmann 1979, 1986, 1997). The main criteria I use are thefollowing, indicated most briefly here: In the mosl general sense, theseconceplions recognise and reslricl society's members' autonomy to behave andconstru~t lheir own conceptions. AII legal phenomena, including the cognitive~oncep~lOns, are normative in t~is sense. Through legal conceptions 'situationtmages of (elements) of lhe social and natural world (of persons, organisations.- 48 ­natural resources, social relationships, behaviour, occurrences) are constituted andconstrucled as meaningful categories, evalualed and given relevance. Relevancemeans lhat definite consequences are altached to and rationalised by reference tothe legal categories and their evaluation. There are three major categories ofrelevance: a) permissibility, b) validity, and c) simple relevance. Law becomesmanifest in two major manifestations, a) as general rules and principies thatevaluale typified situation images for lypified consequences as conditional 'if-then'schemes, and b) as concrele law that evaluates concrele .situation images forconcrete conseq~ences in terms of 'as-therefore' rationalisations.Dimensions 01 variation: Morphological variationSuch concepl of law obviously cannol be more than a cover term that indicates thelegal quality of social phenomena and encompasses a wide variety of empiricalphenomena. 16 However, its important properties are clear and allow for theelaboration of dimensions in which empirical manifestalions of law vary instructure, form, content and significance in social life, belween and within legalsystems. The following morphological dimensions are ralher obvious:• The extent to which general legal cognitive and normative conceptions havebeen instilutionalised and systematised; the scope of institutionalisation (Bergerand Luckmann 1967: 97). This concerns differences in the internal differentiationof bodies of rules conceived as sub-systems, for inslance the development ofpublic and private, civil or criminal, procedural and subslantive law. It alsoconcerns differences in their external differentiation, the extent to which law isdifferentiated from political, religious or economic ideas or systems.• The extem lo which knowledge, interpretation and application of law have beendifferentiated from every day knowledge; the extent of professionalisation andtheoretisation and sdemification (see Berger and Luckmann 1967). lt is here, that theconcepl of 'folk law' is ofien appropriate where knowledge of law and procedures islargely shared by most people and not entrusted lO specialised experts.16 See F. von Benda-Beckmann 1979, 1983, 1992a:2, 6. If Tamanaha states thatdifferemly from mosl approaches, his approach suggests that the label law isapplied to whal are often quile differem phenomena, sometimes involvinginstitulÍons. somelÍmes not (2000:315), this is certainly nol new. My definitiondid not involve a mulliplicity of one basic phenomenon, as Tamanaha imputed tohis legal pluralists (2000:315), but variable phenomena tha! shared the sameanalytically constructed crileria.- 49 ­

WHO'S AFRAID OF LEGAL PLURALlSM?Franz von Benda-BeckmannJOURNAL OF LEGAL PLURALlSM2002 - nr. 47in relation to feelings of justice of a majority of the population, is an empíricalquestion.4. Law and {he stateMost of these consíderalions are relevant, whelher or nOl one defines law inconneclion with the slale. But they reappear in the discussions on whether lhe linkwith the slale should be buill into the concept as a conslant crilerion or beregarded as one variation. In the following, J shall try lo capture the differemargumemations.EvoLuTionis/ assumpTionsMany anthropological, soeiological and legal science underslandings of theevolution of social and political organisalion saw law and legal systems as themost advanced and civilised form of normative ordering and ralional rule guideddecision making. Regarding social and political organisation discovered in the 19'hand 20'h centuries which had no clear hierarchically organised (state-like) politicalsystems, where no courts or clearly recognisable lhird party instilutions wereclearly institutionalised, which had no wrillen rule syslems,' and in whichnormative knowledge was not sharply differentiated, lhe queslion of whether suchsocieties had 'Iaw' presented problems to many European observers.In much evolulionisl legal anthropology around the turn of the 19,h century, thedislinction law - non-Iaw was a non-issue. Maine (1861) spoke of Ancien! Law,Bachofen (1861) of MutterrechT,and also the German scholars like POSl andKohler did nol find it difficult lo use law in relation lO lhe normalive systems oflhe socielies discovered in Afriea and Asia (see also Schott 1982 for Germanelhnological jurisprudence). Differences belween types of law in their view couldbe marked by adjectives (ancienl, tribal, and primilive) that characterised lhespecific nalure of lhese laws. These aUlhors saw dramatic changes and evolutionof legal systems within the overall category of law, aware of a wide range ofvariable empirical manifeslalions of law though time and space.Later evolutionist wrilers adopled a different approach. They held lhat thesesocieties had nol yet reached the state of political and normative organisation thalcould be called state anq law. They developed evolulionist typologies of normsand decision making processes. The crucial crilerion used for making thedislinctions between such law and earlier forms of norrnalive ordering was lhedifferemiation and instilutionalisalion of rule making and sanctioning inslilUtions.- 52 ­We then see an evolution from unsanctioned custom, to diffuscly sanctioned socialnorms, early forms of near-law to the state legal systems as they had developed inEurope (see Diamond 1935; Von Trotha 2000).Many later anthropological ~nd sociological wntmgs about law retained theevolutionist assumptions, but in a watered·down fashion. Functional equivalentswere sufficient, for instance for L1ewellyn and Hoebel (1941), Hoebel (1954) andPospisil (1971). Law remains directly tied to political organisation, but th.ispolitical organisalion need not necessarily have tlle character of a state. No~ dldthe 'pro tanto officials' need to have the character of a state court. BUI the loglc ofdefinilion,lhe dependence of law or the legal on organised sanctioning, was lhe~same (see F. von Benda-Beckmann 1986; see also Tamanaha 1993, 2000). 11should be noted, though, thal, perhaps with the exception of Pospisil, lheseauthors did not consider eonditions of overl legal pluralism. It is uncertain whatlhey would have concluded when 'real' stale instilutions co-existed with the typeof third parties whicll otherwise would have fulfilled lheir crileria for legalness. Jam therefore not eertain lhat Malinowski and olher early legal anthropologistswho accepte'd 'primitive law' as law should be regarded as the intellectualanceslors of the concepl legal pluralism (Tamanaha 1993). In my view, the lrueintelleclual ancestors are ralher lhose wrilers such as Weber 1U and Ehrlich (1913)who did nol take lhe normative claims to lhe legal monopoly of the state forgranted in theorelieal principie (see also J. Griffilhs 1986).EthnocentricityAnolher, yel relaled, argument againsl defining law withoul a conneclion to lhe state,or against developing law into an analytical comparative calegory, is theelhnocentricilY argumento According to Roberts (1979, 1998) using the concept oflaw for comparative purposes "means remaining implicated in the parochial scene.19 11 is characteristic for lhe writings of Austin or Hart. On Austin, see alreadyMaine 1883. See also Galloway 1976, F. von Benda-Beckmarm 1986.lO A good case eould be made, for instance, for Max Weber, rarely quoted in thisCOnlext (bUI see Kidder 1983). Weber conceptualised law through sanctioningrnechanisms, a slaff acting for the larger social whole. But his law was notnecessarily connected to the state, and it was not necessarily exclusive.."lt doesnot constilule a problem for sociology", Weber wrole (1956:23) "to recognize[acknowledge the possibility of] the co-existence of differem, mutuallycontradiclory, valid orders". For him there was no conceptual exclusivity of l~wfor slate-Iínked and -supported normalive order (1956:25).- 53 ­

WHO'S AFRAID OF LEGAL PLURALlSM?Franz von Benda-BeckmannJOURNAL OF LEGAL PLURALlSM2002 - nr. 47For so much of our sense of what law 'is', is bound up with, and has been createdthrough, law's association with a particular history - early on, the emergence ofsecular governmenl in Europe; laler, lhe managemenl of colonial e"pansion"(1998: 98). By using the word law for normative orders differenl from state law,Roberts argues, one would impose the weSlern Eurocenlric concept of law on lhem,jarnrning other peoples' normalive ideas/systems into westem categories and therebydislorting lhem. I do nol lhink thal this is a convincing argumenl.lt certainly is the case tha.t many such ethnocentric imerpretations and distortionsof other peoples' legal syslem, 01' of single inslitutions sueh as marriage 01'properly relationships, have occurred. Much of the lilerature in the ]970s hasdeconslructed such transformalions, going so far as to speak of a 'creation' ofcuslomary Jaws. In more sophisticaled analyses, lhis has led researchers lOdislinguish between the kinds of law interpreted and used in local settings and forinslanee in colonial courts, drawing attention to the conte"tualily of law insociety.21 lt musl also be admitted that in naming concepts such as law, one cannotescape completely from ethnocentric influences. Sorne bias may be inevilable (seeGoldschmidl 1966: 93; F. von Benda-Beckmann 1979: 17; Giddens 1984: 284).Vet it would also be naive lo maintain lhat social scientists could not dislaneethemselves from lhe meanings which have been developed in their own society,and lhat lhey would necessarily be forced to adopt (01' keep running after) thosedefinilions provided by powerful 01' hegemonic agems. Why should one argue likethis at all? Why should one treat law so very differently from other categories weuse for eomparative purposes: religion, politics, marriage, and property? Why isit so impossible 10 lake distance from lhe parochial underslanding of law anddevelop it ¡mo a wider category usefui for looking at differences and similaritiesbetween dífferem historieal manifestations of law? Isn't it Roberts himself whofirst imprisons the word law in lhis parochial, Eurocentric and unhistorical way,so much that it would not even encompass all historical manifestations of 'statelaw'. and then poinls lhe finger at this ethnocentrie prison?22 Apparently, such21 Clammer 1973, Chanock 1985, Snyder 1981. For Minangkabau, see F. vonBenda-Beckmann 1979, K. von Benda-Beckmann 1982, 1984. See alsoWoodman's distinction belween lawyers' and sociologislS' customary ]aw (1987).Long before lhese discussions emerged in Anglo-American legal anthropology,the point had been made by the Dutch scholars of adat law in Indonesia whodistinguished between "adat folk law" and "Iawyers adat law". Van Vollenhoven1909, F.O. Holleman 1938. See also J.F. Holleman 1981.22 Snyder's critique is similar. Comaroff and Roberts (1981) assume that anyconceplion of Jaw is necessarily based, ultimately, on concepts of western legaltheory (Snyder 1993:8). Presuming lhal any conception of law is inevitablyauthors cannot, or do not wam to escape that prison by distinguishing a concept asa sciemific device characterized by properties from descriptions of cultural,social, polilical phenomena. As 1 have written earlier (1997), Chis is a refusal totake analytical distance from the dominant legal ideology in which law and stale aredirectly connecled concepnially.Moreover, slatemenls condemning the use of law and legal pluralism on thesegrounds are frequently apodietieally and unsupported by an analysis of the workof scholars who allegedly, by using law, incorporate ethnoeentric underslandingsinto lheir wrilings. It is by no means that case that researehers during the pasl 30years would usually have lranslaled certain characleristics of 'western laws' ­such as their ideologies of court decision making (rules determine outcomes), thefunctional differentiation of adjudication, the differentiation belween Jaw andpolitics - imo their reading of normative orders in the non-western world.Proponents of a wider analyiical concept of law e"plieitly formulate the propertiesof the coneept in a way that does not inelude ethnoeentric British, Minangkabau 01'Barotse elemems ¡mo the definilion of law but sees them as varialions. In fact, itis only with the help of analytical concepts that alIow us to pereeive, analyse andattempt to e"plain the similarities and differences between British, Minangkabau01' Barotse normative orders. But sueh attempts to develop comparalive analyticalframeworks are usually not discussed at all. Aecusing them of ethnocenlricity inmy view is a case of projeclion of lhe writers' own biases, for they do exactlywhal they aceuse olhers of. They impose their ethnocentric legal ideology on otherpeoples' normative orders and e"elude anything from being 'legal' that does notconform to lhat ideology. 23The meiting down 01 difference argumentRelated to lhe elhnocentricilY argument is the often heard argument, thal byembracing the nolion of legal pluralism !he eoncept of law would become too wideand could comprise "anything" (Merey 1988), and that crucial differences betweenWestern, they rightly erilicise the misapplication of Western legal theory butunnecessarily é",c1ude the possibílity of a more adequate comparative sociology oflaw (1983:9).23 Another weakness of lhis Hne of thought is that it is based upan 'false comparison'(Van Velsen 1969). The measuring stick for description and analysis is taken fromethnoeenlric legal ideology. This means that such a concept would not even be sufficientfor a description and analysis of the functioning legal system from which lheideological descripiive elements are taken.- 54 - - 55 ­

WHO'S AFRAID OF LEGAL PLURALlSM?Franz von Benda-BeckmannJOURNAL OF LEGAL PLURALISM2002 - ne. 47legal phenomena or systemswould be "melted down" (Moare 1978a: 81). In myview, this argument confuses the discussion about the theoretical possibility of legalpluralism with the question of what criteria make (any) normative ordering 'legal'(see also De Soua Santos 1987). Obviously, as Moore (2001: 106) says, "theagglomeration of Ihe whole normative package... has to be disaggregaled, idenlifyingIhe provenance of rules and controls". But Ihis cenainly can be done, and for moredislinclive features than provenance and contro\. Obviously, a conceplualisation oflaw open lO legal pluralism widens the range of legal phenomena. 24 BUI Ihedimensions of varialion, which I have discussed earlier, show that an analYlicalconcepl of law does not mean that crucial differences between legal phenomena orsystems would be 'melted down'. lhat 'anything' would be law, or Ihat anythingcalled law would be 'the same'. On Ihe contrary, it is the strenglh of an analyticalconcept that it provides a starting point for looking at similarities and differencesin several dimensions of varialion in a consislent way, and therefore provides amuch better perspeclive on differences in form and funclion Ihan Ihe stateconnectedconcept. In particular, il also allows the descriplion and analysis ofdifferences within state law which also exhibits considerable variation in lerms ofdegrees of instilUlionalization or mandaloriness. These differences are obscuredrather Ihan broughl 10 attention by Ihe implicit homogeneily of law as state law(see a1so A. Griffnhs 2002).Logical problemsLasl but nol least, logical considerations argue againsl a state-Iaw nexus. Using aconcept of law in which the direct connection to the slate is a constitutive elemen!means ending up with a tautologous concept of law. The lypological models of lawwhich link law directly to political organization or sanctioning power are more orless all based upon the ideas of Austin's analytical jurisprudence. In this model, asalready Maine has shown (1914: 342, 353, 362), the concepls of law, rights and dutyare logically dependent upon the concept of the sovereign. In Austin's construction,24 Tamanaha's recent (2000) turn of mind is rather ironie. "This may beunpalatable lO socio-legal scholars because it threatens a proliferation of kinds oflaw in a social arena, and because it grants remarkable authority to social actors togive rise to the existence of law" (2000: 319,320). But wasn't it just theconsequence of conceptualising law in a way thal allowed for legal pluralism lhatthere was more than just slate law in a social arena, and that it indeed grantedremarkable authorily to social actors, whiJe it was Tamanaha himself (1993) whowas so afraid that lhinking in terms of legal pluralism would lead to a proliferationof too much law?- 56 ­the sovereign itself was nol constituted by law but was caracterized by its "immunityfrom control of every other human superior; its reslrictions are not of a legal kind butof 'positive moralily' ". Later authors replaced the rules that constituted sovereigntyand sanctioning power by (constitutional) legal rules, but retained lhe logicaldependence of lhe concept of law on the power of sanctions. 25 The rules pertaining tothe power of sanction lherefore are not covered by the concept of law; lhey become"legal rules per se" (Geiger 1964: 161). The consequence is circular reasoning:Rules are legal if issuedlsanctioned by a legal institution; a legal institution is onewhich issues or sanctions legal rules (F. von Benda-Beckmann 1986: 106).26 What is,legitimale' is not covered by lhe definition. 275. Conceptual alternativesThe arguments advanced against a conception of law thal can cncompass non-slatelegal forms thus are not convincing. The alternatives in any case seem to be muchless convincing.2S As L. Fuller (1964: 143) and Galloway (1978: 82) have convincingly argued,also Hart's (1961) altempt to distinguish legal from non-legal societies by means ofsecondary rules is a "mild transformation of Austinian doctrine". These secondaryrules are also primary rules, pertaining to one domain of socio-political Iife, lheinstitutionalisation of Ihe exercise of political power through lhe interpretation andapplication of primary rules. See also Bohannan's (1967) similar notion of "doubleinstitutionalisation" .26 The tautology is evident when Geiger who has elaborated probably the c1earesttypology of norms, writesThis only seerns to be an exception from Ihe basic principie jusIelaborated. For how could rules with such content [i.e. penainingto the conslitution and procedures of courls/sanctioninginstitutions] be somelhing other than legal rules as their subjecImaller onIy emerges with lhe development of a legal order (1964:161).21 Compare lhe similar construction given by Hoebel:The essentials of legal ~oercion are general social acceptance ofthe application of physical power, in threat or in fact, by a'privileged party, for a legitimate cause in a legitimate way, and ala legitimate lime (1954:27).- 57 ­

WHO'S AFRAID OF LEGAL PLURALISM?Franz von Benda-BeckmannJOURNAL OF LEGAL PLURALISM2002 - nr. 47At the analytical level, the alternative would be whether or not one wants tooperate Wilh a statisl definilion. There is Iiule lO be gained in ambivalence. 28COllereJl, f?r i~slance, opts for a modified approach in which the possibililY of~egal plurahsm IS not excluded yet c1ear analylical primacy be given to state lawm contemporary socielies (1995: 31). He stales thaland concludes:[ilf o.. lhe dominant concepl of law in conlemporary sociologyof law remains lhe slate law concepl the danger is that lheproblems of lawyers' law may be seen as analytically dislinctfrom lhose of olher aClual and pOlential regulatory syslems(Couerell 1995: 34),My view, then,.is that the kinds of institulional conccpls of lawdiscussed earlier which avoid bolh exclusive concern Wilh slatelaw and also pure juridical pluralism, and treal stale law ascentral lo but nOl the exclusive concern of analysis of law incontemporary Western socielies, are potentially fruilful(CouerelI 1995: 37).Why slate or lawyers' law should be more central analytically, is nolunderslandable. Al lhe leve' of conceptual discussion, lhis should be irrelevant.Whethe~ or nol stat.e law is central polilically, is an empirical question. Primacymay be m research lIuereS1S bU! analytically there is equivaJence.I f one d~cides lhat it is n?l useful to develop the word law into an analytical~oncepl, It can only be relamed as ethnocentric folk calegory in lhe sense thal lawIS ~hal the 'peopl~, or a subset of people, such as lawyers, cal1 law in a givensO~lety and m a glven period of history. This has been Roberts' view since 1979.It IS also Tamanaha's mosl recent position (2000, 2001). Here Tamanaha hasswitched from his earlier ethnocentric-Iawyer definition, 'Iaw is law as defined byus' (1993) to a multi-ethnocentric folk definition, in which "Iaw is whateverpeople identify and treat through their social practices as 'law' (or Recht or droiland so on)" (Tamanaha 2000: 313; 2001).29 Tamanaha (2000) has taken' an ironi~28 Also Merry (1988) remains somewhat ambivalent. See F. von Benda-Beckmann1988; A. Griffiths 2002. See also Norrie (1999) in his critical discussion ofambivalent attempts to transcend the forma7/informal dichotomy.29 What law is is determined by the people in the social arena lhrough their owncommon usages, not in advance by the social scientiSI or theorisl (2000:314).and somewhat paradoxical turn and has put the cart before the horse. On the onehand, he advocates analytical and non-essentialist definitions. As he himself says,"typologies and categories are analytical devices that are designed to meet thepurposes of the social scientist or lheorist who constructs them" (2000: 315), andhe consequently argues in his 2000 paper for what he calls a conventionalist, 'nonessentialist'definition of law. "Usage cannot dictate the construction of analyticalcategories nor appoint their membership" (2000: 315). Yet once he comes to'Iaw', he reverts to exactly such usage, and only wants to develop analyticalcategories (of whal?) 10 analyse these various folk categoríes. JO But analyticalcategories and assumptions should precede and guide empirical investigationrather lhan following them (see also Woodman 1998; Vanderlinden 1998; Roberts1998). Subject-generated accounts of law whether given by law makers or judges,religious authorities, village elders or farmers however instructive they may be,are the empirical stuff to be described and analysed and compared, but they do notprovide the scientific categories through which such scientific work takes place. JIHowever thin the dividing line between social actors' conceptualisations of socialreality (and law) and the scientists' categories through which they try tounderstand such conceptualisation may be, it is this distinction that is constitutiveof the social practice called science. This does not mean that there is sorneinherent truth in the scientists' conceptualisations: their value should bedemonstrated, as Tamanaha, many others and myself demando6. Legal pluralismSo far I have discussed the advantages and disadvantages of an analytical conceptof law that would be useful for cross-cultural and historical comparisons and haveargued thal in sich conceptualisation of law, the link to 'the state' should nol be aconstant constitutive criterion. The next question then is what a usefulconceptualisation of 'pluralism' would be, and whether and how it should bedistinguished as a specific form of complexity or diversity. This involves anumber of issues. Fiest, whal should be underslood as 'pluralism'? Second, whatJO In this case, categories of kinds of law can be formulated following aninvestigation of the various social practices ~d the phenomena to which peopleconventionally attach the label "Iaw". These social phenomena can be abstractedfrom, and their distinctive features identified, then placed into broader categoriesbased upon complexes of shared features.JI Tamanaha is correci in assuming that "social scientists oflen rejectconventionalist, subject generated accounts of law as unscientific or insufficientlyanalytical" (2000: 315).- 58 ­- 59 ­

WHO'S AFRAID OF LEGAL PLURALlSM?Franz von Benda-BeekmannJOURNAL OF LEGAL PLURALISM2002 - nr. 47eonstitutes 'differenee'? Third, 'how mueh different law' has to be involved, arule, a meehanism, an order or system? And fourth, what is meant by 'coexistenee'?,. PluralismThe idea of legal pluralism was an extension from !he analysis. ofdualism/pluralism in colonial societies where it indicated asymmetrical power(and race) relationships between the white minority and the indigenous majority.Used first for characterising colonial economies, it was extended toO cultural andsocial pluralism (Boeke, Furnivall, Smith).32 Talking about 'legal pluralism' in asense was a simple extension of this conceptual usage. However, in the firslsystematic treatment (Vanderlinden 1971), the implict complementary, even ifasymmetrical, character of such pluralism and its assumed or legally prescribedone-to-one relation between law-culture-ethnieity 33 was gradually broken up, byfocussing on the paraUel or duplicatory nature of legal pluralism. This drewattention to lhe faet that a same situation (and implictly the same people) could besubjeet 10 or be confronted with more than one legal order or meehanism, andthat people's actions could not be simply subsumed under 'their' law.1 think that it is useful to reserve the concept to the duplicatory, parallel characterof legal forms or mechanisms, to distinguish it from more general andencompassing terms sueh as complexity or multiplicity. The question is:duplicatory 10 what? Vanderlinden originally (1971: 20) had stated that it wouldbe useful to reserve 'pluralism' to a situation "where different legal mechanismspertained to the same situation" (see also Van den Berghe 1973). Thisconeeptualisation had been eriticized by J. Griffiths (1986), saying t!lat referenceto a 'same situation' was not usefuI beeause the notion of 'the same' wasconstrueted by normative categories. While this certainly is the case, the eriticismis miseoneeived. It results from Griffiths' particular understanding of thedifference between law as objeetified normative meaning (ideological, andtherefore not counting as 'real') and 'real' law/legal pluralism (see F. von Benda­Beekmann 1988, 1997).34 Moreover, it seems to confine lawllegal pluralism tothose aspeets of law which attach eonsequenees .to 'faets'. But eonstitutive andeognitive categories are also part of law. Geertz's (1983) often quoted statementof "Iaw as one way of imagining the real" draws attention to the faet that law alsoconsists of cognitive coneeptions, and that with the help of legal conceptions'faets', or as I have said (1979, 1986), 'situation images', are established. 35 Legalpluralism should be seen to extend to al1 elements of law, to eonceptualisations oflegally constructed situation images, to standards of relevance and toconsequences.Take the instance of 'killing' as 'the same' situation. Different legal systems may,of course, have different eonsequences attached to such a situation image. But theway in which sueh situation image itself is constructed with (a.o.) legalassumptions about causality and evidenee can also be different. Just think ofdeaths caused by witchcraft. Contrariwise, what in one body of legal thought is'killing' may be 'accidental death' in the other. But we can also envisage that'killing' and 'consequenees' are more or less identical in two different legalsystems, yet different beeause they are elements in different systems, havingdifferent bases of legitimation and often, through not necessarily so, differentauthoritiesfor dealing with sueh cases. Or take the legal treatment of kinshipobligations. The nature of obligations may vary between legal systems, but somay the definition of what kinds of persons are 'kin'. Or take the inslance of'Iand rights'. Rights may not only differ in charaeter and distribution over rightholders,also what 'Iand' ¡s, may be defined differently in different legal systems.With Woodman (1998) 1 would see no reason why all sueh situations should notbe treated as instances of legal pluralismo But it tells us tllat in order to seepluralism as duplicatory in relation to '!he same', we must ultimately relate32 Van den Berghe (1973) gives a good aceount of this intellectual history of"pluialism", as well of as lhe other intelleetual history rooted. in Americanpolitical theory where pluralism refers to an organizational plurality of relativelyautonomous (independent) organizations within the domain of the state" (Dahl1982:207). Starr and Collier's strange critique of other wrilers' assumptions aboutlegal pluralism seems to refer to that tradition (see F. von Benda-Beckmann 1997:14).)3 See Greenhouse' s critique of the "corollary relationships between !heorganisation of legal orders and an on-the-ground schema of cultural identities(1998:65).34 Woodman (1998: 35, 37, 38) seems to make the same point, although he,similarly to Griffiths, seems to hold that in order for rules to be observable associal fact sorne extent of significance is required, rather !han a form of existenceas I have argued before. But l would hold that also rules not at all followed aresocial facts.35 See F. von Benda-Beckmann 1979. Barkun 1968, Cancian 1975, Von Wright1974 also emphasise the cognitive elements in law/rules. This should not Jet usforget that legal conceptions also provide standards of evaluntion of permissibleand valid action and transaction, and that others indicate what should or must (nol)be or be done, rather than imagine what has been,or is being done.- 60 ­- 61 ­

WHO'S AFRAlD OF LEGAL PLURALlSM?Franz von Benda-BeckmannJOURNAL OF LEGAL PLURALlSM2002 - nr. 47legally conslrucled sameness. or difference lO our own construction of 'analyticalsameness'. Such analytically demarcated fields or instances, functions or socialproblems, provide the basis for the queslion whether 'situation', a human'~e~son', a '~atural resource' or form of legitimale cohabitation/marriage areslmJlarly or dlfferemly defined and made subjecl lo the same or different legalrules. 36Ma~riage is a good illustration. In West Sumatra (and many regions in Indonesia)for mstance, marriage is institutionalised in three legal syslems: in adat, Islamiclaw and s.tate law. They al! have, sometimes different, notions about proscribed orpreferenllal spouses, the authority of elders/groups over such marriage, differentprocedures for establishing a legitimale union and differenl rules for dissolvingthem. In o~er .to see similarity and difference, one has to go back to an analYlicalconceptuahsallon of marriage, or legitimate cohabitation (or a bundle of rights,see Leach 1961).DifferenceThis brings us to the question of whal sameness and difference means and in howmany different ways these words are used in such discussions. In so~e instancesd~fference is primarily rooled in the location of (similar or different) rules i~dlffere~t .legal orders or systems. In olhers, it is substantive difference, possiblyalso wJthm one order. This leads into two questions recently raised by Woodman(I.99~) and earlier by Vanderlinden, of whether one can speak of legal pluralismwJthm lhe order of state law, and, whether one can speak of distinguishable 'legalsystems' at all?Starting with the first point, Woodman (1998) has argued that pluralism withinone order should also be recogized as legal pluralism. Also within one legal orderthe.re may be more than one legal mechanism 'regulating the same'. For J.Gnffiths, however, this would not be sufficient, since difference for him has lO berooted in different legal orders. J7 I see no reason why one should not be able tospeak of duplicatory institutions or mechanisms for 'the same' within one legal36 We have tried lo develop such analytical understandings for "property" (F. andK. von Benda-Beckmann 1999) and "social security" (F. and K. von Benda­Beckmann 1994).37 Griffiths speaks of different legal orders that co-exist in one semi-autonomoussocial field, but he nowhere makes clear what a legal order is or where differenceresides.order as legal pluralism. One legal system may have alternative forms of marriage(civil, religious). If an analytical definition of marriagellegitimate cohabitation isemployed, there may be a 'common law' marriage and/or publicly acknowledgedand registered forms of co-habitation different from the formal so-called legalmarriage. Why not see this as one possible manifestation of legal pluralism aswell? As in lhe case of law, legal pluralism is never 'the same' empirically (inempirical rules and practices), and as with law, one should c1arify what form orconfiguration of legal pluralism one talks about. In order to avoid confusion, onecan distinguish system-internal pluralism and pluralism of systems (von Benda­Beckmann 1979: 23).Systems, orders. mechanisms, imerpretationsThis leads to the other question discussed by Woodman, whether when looking atempirical situations one can speak of a legal order or syslem at all? He agreeswith J. Griffiths that il is belter to avoid speaking of a legal syslem since oneshould nol imply thal one would assume that the bodies of law one calls systemwould be logically coherent and systematized (1998: 52, 53). As Woodman says(and I would expect most authors would agree with him 38 ), the totality of statelaw, or for that malter non-state legal orders, are rarely if ever coherent in thismanner. This Íhen leads him to conclude that "systems of law do not exist", that"a straightforward distinction between unitary and plural legal situations will notbe possible", that legal pluralism "exists everywhere", and that "legal pluralismis a non-taxonomic conceplion, a continuous variable" (1998: 54).I find it difficult to follow this logic, and several comments need to be made. Oneis that the term system is used here in a very specific way. There are certainlyolher conceptual usages that do not imply internal 10gical coherence andsystematicity but simply interdependence or connection. System can also refer to abody of legal rules and regulations that is conceived of as a totality, a "taxonomiccollectivity" (Harrée 1980), and as such it is used by many writers. 39 Speaking ofsystems lhus can refer to a body of law which is represented. as a bounded38 I would not agree with Woodman's statement that "the usual conceplions ofdeep legal pluralism assume that state law is a well-defined, consistent wholewhich can be one, c1ear part of a plural situation" (1998:52).39 Different conceptions of system are used in lhe syslem-theoretical approach ofLuhmann and Teubner. Different again would be Giddens' concept of system(1979) as interdependenl social practices. See F. and K. von Benda-Beckmann1998: 101, 102.- 62 ­ - 63 ­

WHO'S AFRAID OF LEGAL PLURALlSM?Franz von Benda-BeckmannJOURNAL OF LEGAL PLURALlSM2002 - nr. 47symbolic universe (and for which often, but not necessarily the claim of intemalsystematicity is made). Woodman here, contrary to what he does elsewhere,seems to revert lO the distinction between 'ideology' (system claims) and 'reality',rather unsystematized elements óf law. As Berger and Luckmann have said,"great care is required in any statements one makes about the 'Iogic' ofinstitutions. The logic does nol reside ín institutions and their externalfunctionalities, but in the way these are treated in retlection about them. Putdifferently, reflective consciousness superimposes the quality of logic on lheinstitutional order" (1967: 82). Systems, or elements attributed to syslems, thuscan be distinguished as empirical phenomena. And in many societies, such legalsystems do exist as 'Iaw' or 'state law', 'Minangkabau adat', or 'Islamic law'.This does not mean, however, that all law is seen as (part of ) such system. Theremay be rules (having .all criteria of 'Iaw') which are not treated as part of anysystem, and which I have called 'unnamed law' (1992b: 9). Nor does it mean, thatin order to speak of legal pluralism, always whole systems need to be involved(see Vanderlinden 1971, 1989, 1998; see also Woodman 1998). Systems can be .involved, or single institutionalised rule complexes, or legal mechanisms.A further, and more difficult question is, whether the notion of legal pluralismshould also extend to different interpretations of the same rule or system? It iswell known and documenled, that interpretations of customary laws in colonialand post-colonial states, given by academics, administrators or judges, oftentransform and diston the local legal notions considerably by interpreting them interms of their own ethnocentric or bureaucratic legal categories or política!motivations, or both. This may occur in ad hoc decisions; it may also lead to arather new and standardized and institutionalised bodies of 'Iawyers' customarylaw' (Woodman 1987) quite different from local people's interpretation andapplicalions. 40 The same phenoinenon is also common in the realm of religiouslaw, where religious expens may interpret customary law in their own terms, butwhere it may also be interpreted and transformed by customary law expertsand/or state law agents (see F. and K. von Benda-Beckmann 1993). Usually last ifat all, but theoretically certainJy not least are reinterpretations and transformationsof state law by non-state legal actors (F. von Benda-Beckmann 1984). This thenleads to sorne extent of pluralism' within the same legal system (seen as namedtaxonomic collectivity), of sets of interpretalions differen! in their substantive andprocedural form.40 See already Van Vollenhoven 1909 and the distinction between adat folk lawand adat lawyers's law. See Clammer 1973, Chanock 1985 and many others. ForIndonesia, see F. von Benda-Beckmann 1979, K. von Benda-Beckmann 1982,1984.What these discussions show, is how evasive the word 'different' is. They alsotell us that just talking, not to speak of theorising about 'legal pluralism' as suchwill often remain meaningless. Dissolving its meaning in a continuous variable assuch is not very helpful. Just as in the case of law, analytically conceived, wherenot all law is 'lhe same', empirically 'legal pluralism' appears in different degreesof institutionalisation and constellations. One must specify its characteristics andits most interesting dimensions of variabilty, and its locus in social organisationand the scale of its operation, seen from its own c1aim to validity and actualexistence and significance. If its characteristics are specified, there is Iiule roomfor misunderstandings.7. Legal pluralism in society: Where 'is' legal pluralism? What is'co-existence'?So far, I have been concerned with c1arifying analytical issues at the level ofconcepts that refer to law and legal pluralism as more or less complex bodies ofobjectified conceptions. It should be obvious that by locating law in the realm ofobjectified meaning I do not wish to follow or propagate an empirical approach tolaw like the ones that have been called the "ideological method" (Llewellyn andHoebel 1941; Hoebel 1954; Pospisil 1971) or the "rule centred approach"(Roberts 1979). If one is interested in 'legal pluralism in society', one wants toexplore the emergence and change of plural legal eonditions, the dynamics of theinterrelationships of their elements, and their significance in social, political andeconomic life. But if we wish to study law and legal pluralism in society andrelate Jaw to social practices and its social significances, law as objectifiedmeaning must be conceptually divorced from the human activities which generateit, use it, and maintain it through time, and from the activities to which il refers(F. von Benda-Beckmann 1983: 237, 238). This presupposes an understanding ofwhat we understand under the 'existence' of law or 'co-existence' of legal orders,where we have to look for il.Variation in lhe 'exislences' oflawLaw has many existences (see also Thompson 1978). Firstly, law may beembodied in written and spoken texts. This may be different forms of rulestatements or decisions, but also contracts or other legal documents such astestaments (see already Ehrlich 1913). In plural situations, there thus may be quitea variety of such texts.- 64 - - 65 ­

WHO'S AFRAID OF LEGAL PLURALlSM?Franz von Benda-BeckmannJOURNAL OF LEGAL PLURALISM2002 - nr. 47Secondly~ ~aw ~an exist in the knowledge of people. One can, following Ryle(1970) dtstmgUlsh different kinds of legal knowledge. One useful distinction isbetween general knowledge and concrete knowledge. With general knowledge Imean knowledge of general legal conceptions; with concrete knowledge I meanknowledge of how such general legal conceptions have been concretised inrelation to a concrete situation. Another useful distinction is between ex-anteprospective and ex-post, retrospective knowledge. Ex-ante knowledge is th~general knowledge and concrete knowledge of earlier decisions. This difference isrelevant in relation to concrete problematic (problematized) situations. Ex-anteknowledge is usually vague and only allows more or less educated guesses of whatthe general conceptions would mean in relation to a concrete problematic situation(see Witkam 1990, Colterell 1989). Ex-post knowledge is knowledge that hasbeen produced in relation to a concrete situation, often in a lengthy process offinding the law wiLh which to rationalize and justify decisions. These differeOltypes of knowledge are all what Ryle (1970) would call "knowing what"knowledge, knowledge of law as general abstract conceptions (rules, principIesetc.) and/or as concretised in actual decisions. It should be distinguished furtherfrom 'knowing how', from the tactical knowledge of how mobilize such generallegal knowledge in social interaction (see F. von Benda-Beckmann 1991, Wickam1990). 'Knowledge' of course is relative. lt may reach from a profound. knowledge of legal materials to the basic understanding 'that there is law'. Underplural legal situations, many people are Iikely to be "multi-Iegal, know sorne lawof different legal systems " (F. and K. von Benda-Beckmann 1991).Thirdly, law may be inscribed into the statuses of persons, resources andorganisations as well as iOlo social relationships and institutions, giving lhem alegal slatus, usually with wide-ranging legal consequences. Under conditions oflegal ~Iuralism, the:e is ~ wider repertoire of different and potentiallycontradlctory concepllons whlch may be employed. This legal c10th of stalusesand relationships thus is potentially 'multi-normative' (F. and K. von Benda­Beckmann 1999 for property relations). Whether or not this is the case inempirical situations, whether certain (categories) of actors do use conceptions ofone sys~em, or mobilise conceplions against each otller, or accumulale conceptionsfrom. dlff~renl syslems to give meaning and legitimacy to persons, objects andrelat.l~nshlps and altach to the respective legal consequences, is, of course, anemplflcal question.:ourthl~, and most importantly, law may be involved in social processes/socialmteracllon. I speak of law involvement if persons orient their (inter) actions atlaw (in the Weberian sense) and are constrained or enabled by law, seen throughthe general methodological perspective of an 'actor-structure' framework- 66 ­(Giddens 1979, 1984).41 We can distinguish two major modes of lawinvolvement. Law may also be used as a resource in social interaction, as a meansto rationalize and justify actions, occurrences, interpretations, c1aims or decisions(Turk, 1976, F. von Benda-Beckmann 1983, 1992a). It may also be used as alegitimate modality for reaching certain objectives such as the making of atestament, or a contract or rule making at whatever level of social organisation(see F. von Benda-Beckmann 1983, 1989). But we have also to assume thathuman interaction is always potentially to some degree and besides other factorsinfluenced by the totality of (plural) law when people consider what actions toengage in or to abstain from. In many social processes, both modes of lawinvolvement occur. A brief illustration from my research in West Sumatra (1979).Many fathers made testaments, usually for the benefit of their children. Theywere intluenced by Islamic law, according to which the making of a testament(governing up to one third of the inheritance and not in favour of lhe Koranicheirs) is recommended. They were also influenced by the rules of Minangkabauadat, according to which a man's inheritance used to be inherited by hismatrilineal relatives. Although this had changed recently, the legal situation wasfar from c1ear. So fathers wanting to get their property iOlO the hands of theirchildren without too much fuss felt a need to make sure. Wrilten testaments, theyknew, would also fare well if a dispute came before the state court. State courtswould accept the making of a testament as being in line with the 'newMinangkabau adat law' which had been promoted by state cour! interpretationssince the 1930s, and gradually had also been recognized by large segments of thevillage population as adat law. The testaments would not have been valid in thescholarly legal interpretatíon of Islamic law; yet the new rules of inheritance anda persons' s freedom to testate were also treated as Islamic law by sorne segmentsof the population. This liltle example shows us that, and how, a) humaninteraction is potentially and usually amongst other factors influenced by lawthrough the testator's retlection on old Minangkabau adat and Islamic law. We b)also see how one legal form or modality, the testament, ·is used as a resource forattaining a goal, the property transfer to his children.This does not necessarily mean that people overtly refer to or use (one type) oflaw in social interaction; people can act 'in the shadow of law' (Mnookin andKornhauser 1979, Galanter 1981) or rather in 'the shadow of legal pluralism' (F.41 Sorne variation of an actor-structure methodology has become commonplace inthe social sciences in general. The extended case studies of Gluckman and theManchester amhropologists are early examples. For an explicit actor-structureapproach, see Comaroff and Roberts. See F. von Benda-Beckmann 1983, 1992a,2001. See for legal pluralism also the recent contribution by A. Griffith 2002.- 67 ­

1,WHO'S AFRAID OF LEGAL PLURALlSM?Franz von Benda-Beckmannvon Benda-BeckmannI992: 15c, 2001) or 'interlegality' (De Sousa Samos 1987).While actors have sorne (and of course different, depending on their social,economic and polítical power) room for manoeuvre in interpreling ortransforming elements of lhis legal context in lheir interactions, the personsinteracling in a given situation have no or little influence on Ihat wider contexl oflegal pluralism which is mainlained and changed independemly from, andsimultaneous 10 their imeraClion in many olher, time and space bound inleraclionprocesses (F. von Benda-Beckmann 1992c: 15).Lawand involvement and reproductionAs [ have argued elsewhere, by which agents or aUlhors and by which activilieslaws are generaled, by whom and for which purposes law is used, and by whomand how law is socially reproduced are empirical questions lo be answered byresearch. They are nol definitional queslions lO be answered by jurisprudential orsociological dogma (F. von Benda-Beckmann 1983: 238, also 1979: 11). There isa variety of social processes in which law can be involved. Besl known anddogmalically privileged are lhose interprelalions and reslalements of law occurringin formalized processes of validalion of rules and decisions which involve personsor organisalions representing the public, such as judicial and adminislralivedecision makers who have lo decide 'according lo law'. These can be courlproceedings or processes of 'preventive law care' in which lrouble-Iess social oreconomic lransaclions are validaled in formalized processes lhrough publicinslÍlulions such as civil regislrars or nolaries public (see HolIeman 1986). BUIreproduclion of law may also lake place 'OUl of context' in many different ways inprocesse:; such as lhe socialization of children, in the reproduclion of law inuniversilies or in the media, and last bUl nOI leasl in lhe use of legal forms andorientalion al law in 'everyday Iife' where il also can be used as a means ofralionalizalion and juslification of c1aims in everyday processes and lransaclions(Moore 1973; F. von Benda-Beckmann 1984, 2001a; De Sousa Sanlos 1985).42 Ido nol want lO efface lhe difference belween uses of law in lhose inleraclion42 The DU1ch adallaw scholar Van VoJlenhoven (1918, 1931, 1933), writing aboulthe processes through which adat laws in Indonesia were maintained, alreadydistinguished lhese different forms of lransmission and maintenance of law. Oneof first Anglo-American legal anlhropologisls lO break OUl of lhe slraighljackel oflhe trouble case melhodology was Moore (1978a). See also F. Von Benda­Beckmann 1979; Galanler 1981. De Sousa Sanlos (1985) distinguishes fourparticularly relevant "structural places". See also Sarat and Kearns (1995) on "Iawin everyday life".- 68 ­1 JOURNAL OF LEGAL PLURALlSM2002 - nr. 47i1Icontexls thal are dogmalically and polítically privileged as 'legal' by legal science,! such as court decision making in which lhe reproduction of law gels a particular'currency' (Wickham 1990) and lhose which are nol so privileged, bUl everyoneinleresled in lhe ways in which law is maintained needs also be inleresled in lheolher social processes in which Ihis occurs. While such processes may nol havelhe same significance in legal doclrines and for lhe definilion of law, lheycertainly conlribule lo Ihe maintenance of law.Condilions of legal pluralism usually broaden lhe scope of social processes inwhich lhe idea of law or certain legal elements are reproduced. They also affectlhe exlent lO which legal forms are explicilly invoked (F. von Benda-Beckmann200Ia). The invocation of law, as a rationalísing and justificatory scheme, largelydepends on whal under lhe given circumstances can be regarded as self-evident(Berger and Luckmann 1967, Giddens 1984; F. von Benda-Beckmann 2001 a).The self-evidence decreases in parlicular when allernalives are given. Then il haslO be c1arified which alternative has been chosen, and lhe pressure lO juslify thechosen one becomes bigger (see Comaroff and Roberts 1981, 1977). For lhalreason, processes of lhe reproduclion of law usually are more explicit underconditions of legal pluralism, when people are aware of allernative normaliverepertoires and/or procedures in which lhese can be used. BUl generally thecondition of legal pluralism challenges the exclusiveness and self-evidence of anysingle normative syslem. One is no longer concerned with lhe queslion of whelheror nol to reproduce elements of 'the' law as againsl non-legal modes. Choicesbelween legal syslems are lhinkable. Orientalion al and invocalion of one of lhealternatives therefore require an explicil justific/ltion. 43Of course also in lhe context of legal pluralism, different partlCtpantS anddecision-makers may refer to the same law. BUl they oflen mobiJize different legalrepertoires againsl each olher (folk law againsl state law, religious law againslfolk or slate law elc.). They may also accumulale elements of different systems orcompound lhem lo creale hybrid forms. Even in a very small-scale interaclionsiluation (or small semi-autonomous social field) much variation is possible. Takean inherilance dispule in West Sumatra. The parlies know lhat there is adat andIslamic inherilance law. This is part of their individual knowledge and part of thewider contexl in which lhey inleract. In one case, lhey bOlh quarrel and argue in43 Reference to lhe rules of one syslem, in Indonesia for instance of adat overIslam or slale law, then often gel the characler of a political and ideologicalstalemenl. One not only opts for a Iimited number of rules lhaL should apply lo aproblematic situation, bUl for the whole (sub)system of which these rules formparto- 69 ­

WHO'S AFRAID OF LEGAL PLURALlSM?Franz von Benda-BeckmalUlterms of adat law. In another situation, they mobilize adat and Islamic rulesagainst e~ch o~her .in the rationalization and legitimation of their opposing claims.In the thlrd sltuatton, lhey use adat rules and Islamic rules to settle differemaspects of the inheritance issue. In the fourth situation, although aware of otherpeople's or courts' im~rpretalion of the differences between adat and Islam, lheyslate tha! lhey see no dlfference, thal adat and Islam is aClually the same.~rocesses lhal (~e)state law can reproduce legal rules in different ways. Much lawIS reproduced m processes in which general concepts, rules, principies, orslandards ~re (re)stated in their generality, without relating them to any concreteprobl~mattc occurrence. This is for instance the case in general descriptíons orleachmgs of law. BUI Jaw can also be reproduced in processes in which generalrules and principIes are related to concrete problems and are used to rationalizeand juslify specific problemalic condilions or occurrences, for making evaluative~talem~~ls and ~or justifying claims and counterclaims, verdicts or compromisesJO declslon-makmg processes in adminislrative and judicial institutions. AIso inor~inar~ life imeraclion, concrete silualions, occurrences, and claims can berauonal1zed and juslified with lhe help of general rules, concepls, and standards.In such processes general rules and principies are reproduced, lOO, but in additiont~ey ~rod.uce 'concrete law' by giving concrete legal evaluations with respecl 10 asltuanon Image (F. von Benda-BeckmalUl 1986, 1989).There are a!so .considerable differences in lhe amOUnl of law which is explicitlyreproduced m smgle processes. In official legal processes, usualIy several rules orrule comp.lexe~ ar~ explicitly reslated for establishing the relevant sel of facts (therelevant sltuatlon Image), the slandards of evaluation for lheir relevance in termsof peTl~issibililY or validity and for Ihe delermination of lhe consequences of suchevaluatlOn. In everyday Jife imeractíons, references lo law may be less syslemalicand more seleclive, depending on Ihe legal knowledge of lhe persons concerned.There ~ay also be simply ~eneral specified references lO 'lhe law' or 'lhe legalsyslem as a whole. The Idea of law then is used as a tolafJing (summary,umbrelIa) concept, a 'laxonomic colleclivity' (Harrée 1980). But also suchproce.sses uphold and reproduce lhe 'idea' of law (or a specific kind of law) andby lhls deny alternalive, non-legal rationalizalion and juslification schemes.'CO-~xislence' lhus can mean many differem lypes of interrelations and socialpracltces. Elemenls from different syslems may be fused in one context andreproduc.ed as dislinct. 'pure' syslems in lhe olher - lheoretícally by the 'samepeople, 10 the same vlllage,alI on the same day (see F. von Benda-Beckmann1988 for zakal ~ule~). Through any single process contributing to reproduction ofone subsystem 10 vlew of allernatives, the relationship between lhe subsystems isreproduced as well. Whal can be generalised from any such single process,- 70 ­JOURNAL OF LEGAL PLURALlSM2002 - nr. 47however, is limiled. For simultaneously and lhrough time, a multitude of suchsingle processes occurs, in many different conlexlS, Wilh different outcomes, anddifferent further consequences. These complexities defy easy generalisations onthe existence and actual configuration of plural legal orders al macro-level, macrounderslood as large scale socio-political space (F. von Benda·Beckmann 200Ia).Where is legal pluralism? Or better: whal should we sludy?This brings me to the last point, the questions raised by Woodman (1998) andVanderlinden (1998) as to where law and legal pluralism is lo be found, or,better, to be looked for - in society, legal systems, in semi-autonomous socialfields. in the context with which individuals are confronted and in which theyinteract, in lhe books or in action?To pose lhe queslion in such lerms seems (O be strange (see also Woodman 1998).jusI as wilh lhe sludy of law, lhe sludy of legal pluralism can be done withdifferent questions in mind. It will depend on what one is interested in - whetherone selects a politico-geographic space such as Indonesia or Germany, struc!uralp1aces Iike households (De Sousa Santos 1985), an analylically conceivedfunclional domain (Goldschmidl 1966, von Benda-BeckmalUl 1979, F. and K. vonBenda-Beckmann 1999), a semi-autonomous social field (Moore 1973) or an'arena' (Tamanaha 200, 2001). h is Ihese choices and lheir descriplive andlheorelical ambitions lhal determine what kind of events or sequences/processesane has to research and where lhe 'presence ' of dilplicalory legal elements - ofdifferent or within one legal order has lo be looked for.Some may focus on lhe constellation within lhe tOlalily of legal bodies and theirhiSlOrical development, for instance the hislory of legal pluralism in the RomanEmpire, in medieval Europe, in WeSl Sumatra before and after colonisation, inlhe contemporary global contexto One may aim al generalising accounts of lhesocial processes lhal shaped the emergence and maintenance of such complexconslellations, lhe interrelations of their major constituling bodies (see e.g.Fitzpatrick 1983; De Sousa Santos 1987, 1995). But Ihere is no reason whyattention should not be given to an account of the constructions of plural legalSlrUClures by politicians and lawyers, including the different juridic conslructionsof lheir relative spheres of validity. That one calUlOt infer much aboul lhe relativesignificance of the different syslems in various domains of social, economic andpolitical life does nol make such research less interesting; il only shows itsIimilalions. Olhers will want (O (and many do) study how individuals fare in theirinteractions in the contexl of legal pluralism, as Vanderlinden (1989) has urged usto do. BUl again, there is no justification for declaring this the only relevanl- 71 ­

WHO'S AFRAlO OF LEGAL PLURALlSM?Franz von Benda-BeckmannJOURNAL OF LEGAL PLURALlSM2002 - nro 47research focuso Moreover, in order to study the role of plural legal orders in andfor the Iife of individuals, we need 10 sludy the social processes through which theplural legal orders in which they interact become involved and are reproduced inolher contexlS of interaction.Concluding, one should make c1ear that one should clarify at which layer of socialorganisation or which moment in processes of structuralion one speaks: of legalpluralism as an outcome of social processes, as a context for social interaction, asbeing reproduced in interactions in different interaction settings and locales, etc.Only then can be seen to what extem, and in which socio-political or geographicalspaces, legal forms are plural, individuals are 'multilegal' and objects and socialrelationships 'multi-normatíve' (Fo and K. von Benda-Beckmann 1991,1999), andto what extem one can generalize from any such layer or interaction setting forthe wider existence and significance of plural legal constellations (F. von Benda­Beckmann 200Ia).8. The bogeyrnan of the legal pluralistsBeyond the threshold of the yes or no to legal pluralism, there is li!tle uniformity inthe conceptualisation of law, or legal pluralism, or about the possible reJationsbetween such plurality and social organisation and interaction. While there iswidespread agreement, that social scientific concepts of law shOl~ld nol be takenover from the normative and ideological self-descriptions of one's own legal systemauthors as different as Griffiths, Roberts, Tamanaha, Moore, Merry or myselfwould agree on this the further consequences drawn, as to the conceptualisation oflaw and/or legal pluralism differ widelyo AIso, authors whose theoreticalunderstanding does allow for legal pluralism, end up with widely divergent conceptsof law: see for instance Griffiths, Woodman, Pospisil, Tamanaha or myself. 44 Thereare also considerable methodologicaI and theoretical differences across the legalpluralism lineoThe positive acknowledgement and use of the concept of legal pluralism alsocannot be associated with one specific social science or legal science. Whateverthe intellectual history of the concept may be,45 nowadays, it is used, and44 Tamanaha (1993), who besides Roberts has been rather instrumental in creatingthe bogeyman of legal pluralists, is a nice example because he, besides Roberts,was among the creators of that group, and ,now has entered il.45 Obviously, we would need a closer look into the social history of the concept oflegal pluralism, and the different meanings given to il. For reconstructions of the-72­criticised, by many, in anthropology, sociology and politica! and lega! science, andthe use of the concept no longer tells us much about the disciplinary background ofacademicso In legal science, anthropology and sociology there are many who usejt, and many who do not use it, and the use or non-use tells us very Httle abouttheir diverging methodological and theoretical preoccupations. 46 This division ofminds crosscuts the boundaries between anthropology of law, sociology of lawand legal scienceo The use of the term lega! pluralism certainIy no longer is anexclusive identity marker for legal anthropologists. 47 I certainly protest Roberts'position on what legal pluralism in the academic world is about. In his view, "lheprovenance of legal pluralism is unambiguously a creature of lhe law school"(Roberts 1986, 1998; Fuller 1994).48 This seems to be rather far-fetched andempirically questionableo While there are academic lawyers who have discoveredlhe concept of legal plura1ism and use and wrile aboul lhe term, the majority of legalhistory of 'legal pluralism', see Griffiths 1986, Merry 1988, Vanderlinden 1971,1989, 1998; de Sousa Santos 1987; F. von Benda-Beckmann, 1994, 1997; C.Fuller 1994; Tamanaha 1993, 2000; Snyder 1993; Woodman 1998; Ko vonBenda-Beckmann 2001b; Ao Griffiths 2002046 Different importance is given lo the issue, anlhropologisls usuallybeing lessgiven to lengthy conceptual discussions, see Geertz 1983; Moore 2001 or Nader2002.47 See on the one hand Von Trotha's evolutionist denial of the usefulness of theconcept, and on the other hand Cotterell's (1995) moderate view from legalsociologyo In his discussion, COlterell concludes that sociology of law may be bestserved at the present stage of its development by a plurality of approaches lO theproblem of the concept of law (1995:33). He is not convinced that lawyers' lawneed be the concept of law but is also wary of fulIy embracing nOlions of legalpluralismo Yet to widen the concept of law beyond the lhe lawyer's view of it is toassert the sociological necessity of considering the possibility thal legal thought orlegal processes in various empiricalIy analysable forms may be a relativelypervasive fealute of social life rather than isolated phenomena of a narrowprofessional sphere (Cotterell 1995:33). If the dominant concept of law incontemporary sociology of law remains the state law concept the danger is that theproblems of lawyers' law may be seen as analytically distinct from those of otheractual and potential regulatory systems (Cotterell 1995: 34)48 Roberts refers to Tamanaha (1993) who allegedly had said sOo But Tamanahahad argued that "strong legal pluralism is the product of social scientists" (1992;­25), oUling Malinowski as the tme intellectual father of the notion (1993: 192,203).- 73 ­

JOURNAL OF LEGAL PLURALISMWHO'S AFRAlD OF LEGAL PLURALlSM? 2002 - nr. 47Franz von Benda-Beckmannacademics certainly do not really use it,49 Even among legal sociologists interested inlaw or lawyers ilS use is rather the exception than the rule. The creation of twocamps, one of so-called plural ists and one of state law adherems therefore doesnOI make much sense and only detracts allention from lhe really imereslingmethodologic"al queslions.9. A final cornmentIn the discussion of the concept of legal pluralism, much time has been devoted toconceptual, sometimes rather scholaslic argumentation. Such discussions areimportanl for creating analytical clarification, and for laying bare the manyideological and theoretical assumptions that are often implicit and hidden incertain conceptual usages. But lhe discussions easily become sterile unless lheyare rooted in the analysis of empírical situalions and historical processes, andunless lhey are made part of a more comprehensive social scientific understandingof the social world of which law and legal pluralism, however defined, are onlyone aspect and part. I reiterate here that such conceptual and analyticalc!arifications are useful, bUI lhey do not amoullt to 'lheory'. Given the widevariety of what is called law or legal pluralism, it would be pretty awkward totreat them as 'one factor' in theoretical understandings or explanations of actualsocial siluations and (microor macro-) historical processes. DifferentconsteHations of legal pluralism - at whatever time and spalial scale - have tobe explained by lheory (see also Greenhouse 1998: 3). Much more attentiontherefore should be given lO empirical research and to the theoreticalunderstandings of the many varialions we find in the empirical constellations oflegal pluralism and of the ways in which these different constellations influencethe actual social, political and economic conditions in the areas and the lives ofthe people concerned.ReferencesBACHOFEN, Johann Jakob1948 Das Mutterrecht (2 Vols.) Slungart. [1st edition 1861J49 See also Woodman (1998:40) "Lawyers have preferred to ignore lhe subject sinceit challenges lheir accepted ideologies".- 74 ­BENDA-BECKMANN, Franz von1970 Rechtspluralismus in Malawi Geschichtliche Entwicklung und heutigeProblematik eines ehemals Britischen Kolonialgebiets. München:Weltforum Verlag.1979 Property in social colltinuity: Continuity and change in the maintenanceof property relationships through time in Minangkabau. Wesl Sumatra.The Hague: M. Nijhoff.1983 'Why law does not behave: Critical and constructive reflections on thesocial scientificperception of the social significance of law.' pp. 232-262in H. Finkler (comp.), Proceedings oflhe Symposium on Folk Law andLegal Pluralismo Xlth IUAES Congress. 1983. Vancouver.1984 'Law out of context: A comment on the creation of customary lawdiscussion.' Journal o[African Law 28: 28·33.1986 'Anthropology and comparative Law.' pp. 90-109 in Keebet von Benda­Beckmann and Fons Strijbosch (eds.) Amhropology ofLaw in Ihe Netherlands.Dordrecht: Foris.I988a 'Cornment on Merry.' Law and Society Review 22: 897-90 l.1988b 'lslamic law and social security in an Ambonese village.' pp. 339-365in Franz von Benda-Beckmann, Keebet von Benda-Beckmann, EricCasino, Fran.k Hinz, Gordon Woodman and Hans Zacher (eds.),Between Kinship and the State: Social Security and Law in DevelopingCounrries. Foris: Dordrechl.1989 'Scapegoat and magic charm: Law in development theory and practice.'Joumal o[ Legal Pluralism 28: 129-148.1991 'Pak Dusa's law: Thoughts 'on legal knowledge and power.' pp. 215­227 in E. Berg, J. Lauth und A. Wimmer (eds.) Ethnologie im Widerstrei!:Konlroversen über Machi, Geschtift, Geschlecht in fremden1992a1992bKulluren. Festschriftfür Lorenz G. LOffler. Trickster Verlag..'Introduction: Understanding agrarian law in society.' pp. 1-22 in Franzvon Benda-Beckmann and Menno van der Velde (OOs). Law as aResource in Agrarian Struggles. Wageningen: Pudoc.'Symbiosis of indigenous and westem law in Africa and Asia: An essayin legal pluralism.' pp. 307-325 in W.J. Mommsen and J.A. de Moor(eds.), European Expansion and Law: The Ellcounter o[ European andIndigenous laws in 19th and 20th Century Africa and Asia. Oxford/NewYork: Berg Publishers.I992c 'Changing legal pluralisms in Indonesia.' Yuridika8/4: 1-23.1994 'Rechtspluralismus: Analytische Begriffsbildung oder politisch­ideologisches Programm?' ZeitschriftjUr Ethnologie 119: 1-16.1997 'Citizens, strangers and indigenous peoples: Conceptual politics andlegal pluralism.' pp. 1-42 in Franz von Benda-Beckmann, Keebet von- 75 ­

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