The Development Of Legal Pluralism

In some works on legal sociology and legal anthropology, the concept"legal pluralism"will attract their readers'attention sufficiently. Actually, it has been a shared issue in many fields, and especially as the global perspective is adopted as an important dimensionality of intelligence and practice, legal pluralism is of more importance and deserves argument. However, the attitudes of theorists to legal pluralism are so various that any specific definition may never be widely accepted. This text tries not to solve such a problem, but to construct the development of legal pluralism without referring the essential controversy about it. The three major parts below will contribute to this purpose.In the first part, the presuppositions of the study of the development of legal pluralism are proposed and the analytical framework is established. Disregarding any dispute over legal pluralism, such an attempt progresses as a result of four presuppositions: first of all, the essence of legal pluralism, which is to introduce non-state law; secondly, the influences of cultural diversity on legal structure; moreover, the requirement of social order and the approach to it; finally, the inter-opposite mechanism between the official and the folk. To some extent, these presuppositions determine the province of legal pluralism as the object of this study, and just because of these presuppositions, the dualistic structure, including social order and legal conception, is proposed as the analytical framework of legal pluralism in this part. Moreover, the connotations of normative order and legal conception are also defined according to the intention of this paper.In the second part, the development of legal pluralism is analyzed through normative order. Firstly, although it is necessary to research the transformation of social order in terms of time, the focus on normative order in this article begins with colonial and post-colonial societies. The social order in colonial and post-colonial societies is of great importance to the term legal pluralism, because classic legal pluralism existed only in these forms of society. At the same time, the environment in which there was classic legal pluralism was not a classic form of society, which leads to the fact that more kinds of society are brought into the sight of theorists adept at legal pluralism. Subsequently, the paper analyzes the social order throughout the whole human history roughly. In the multi-compositive legal structure, the law created or recognized by the nation may always be generally admitted in theory, so non-state law is taken as the key to the development of normative orders. There had been social rules and social order before countries appeared, and only a kind of non-state law, primitive law existed then. After the birth of countries, social order was influenced forcefully, as a result of which two relatively unattached systems were shaped and the resistance and penetration between them became an issue that can not be neglected in many occasions. Modern societies provide more wide space for non-state law, which may be attributed to changes of life style and transformation of social structure, to the consciousness of democracy and liberty as well as the spirit of the rule of law, to the legal reformations in underdeveloped countries. Furthermore, it is necessary to refer the society under a global perspective in particular for the participation of global factors. The symptoms, such as innovation on productive mode and on transmitting form of information, the conflict or assimilation of cultures and institutions, global problems, supranational organizations, the weakening of sovereignties, Western-centralism, have widened the visual field of theorists discussing legal pluralism, have enriched the future of legal pluralism, and have also made legal pluralism assume more theoretic responsibilities. What is more, the bases of the development of normative orders are to be explored with attempts, which mean that the development of legal pluralism is attributed to social differentiation and cultural succession. Social differentiation tends to construct new social order, while cultural succession tends to keep former order. Official law and unofficial law are under their mutual effects.In the third part, legal pluralism is discussed in the light of the conception about law. Legal conception is recognized as the theoretical foundation at first. As well as contains some understanding of society, legal pluralism also contains some understanding of law. In order to grasp the understanding conveniently, four forms of standpoints on legal pluralism are distinguished, which include descriptive legal conception, constructive legal conception, reflective legal conception, and critical legal conception that is accessorial and implemental. In addition, the opposite of legal pluralism, state centralism is also involved. In the three succedent segments of this part, the development of legal conception is compartmentalized into three phases: the cognitive one, in which the differentiation between state law and non-state law was identified; the constructive one, in which law in books and law in action were paid attention to on distinct standpoints; the reflective one, which can be symbolized by some postmodern understanding of law. The differentiation between state law and non-state law always appears outside of the domain of law, mainly in works on anthropology and sociology, which pay attention not to law itself, but to the society through law. Law in books and law in action is distinguished by jurists. The term"law in action"emphasizes particularly on the run of law, and regards law as the general rules of social action or as the basis of an action or a decision in a certain place. To some extent, searching for the origin of law by Herry Maine and Savigny, both of whom are representatives of the historical school of law, laid a foundation for the idea"law in action". Ehrlich's"living law", some propositions of sociological jurists, and the"law and society"movement indicated law in the perspective of sociological jurisprudence (legal sociology). Nevertheless, realistic jurists constructed"law in action"with lawyers'perspective, which exactly fitted the status and backgrounds of most of them. Finally, postmodern understanding of law is obviously reflective. In this incompact group, theorists'legal thoughts are based on the realizing of the uncertainties of social life and rethinking the paradigm of law deeply, and tends to advocate legal pluralism instead of state centralism. Postmodern legal pluralism also raises some problems about legality: both plural justice and the decline of universal authority make it difficult to validate any action.It is too hasty to consider that these three parts may help to clarify argument on legal pluralism. In a sense, the conclusion achieved in this text is only to bring forward the question"what is law". Then it returns to the ultimate issue of jurisprudence. The partial analysis on the development of legal pluralism follows merely one theoretical path from all, which is social-legal perspective and social-legal approach.