GRIFFITHS’ PARSING OF THE MEANING OF LEGAL PLURALISM

PART 15: LESSONS OF LEGAL PLURALISM

This post is part of a lengthy series exploring the world of legal pluralism, particularly (though not exclusively) as it was grounded in the world of the medieval constitution. For a full index of the installments so far, see the introductory post, here.

This is another short installment to the series. I’ll be briefly summarizing an iconic 1986 article on legal pluralism, which gets cited often when one is perusing the scholarly literature. Given both how influential the article seems to have been, and that it does offer I think a consideration of some important wrinkles that could be beneficially incorporated into our analyses of pluralism (legal and otherwise) moving forward, I thought it might be fruitful to dedicate this short post to John Griffiths’ paper.

The article in question is “What is Legal Pluralism?”¹ In it Griffiths makes two important distinctions in practical legal pluralism: between weak and strong pluralism and between corporate and processual pluralism. First, between weak and strong legal pluralism: Weak refers to subordinate entities which derive their authority through concession of the sovereign. An example of this weak legal pluralism might be what some call administrative federalism or consociation. In those cases, a legal monist entity, perhaps for efficiency or maybe legitimacy purposes, has delegated some bandwidth of responsibility to other, presumably lower, levels of operation. These delegations though are strictly administrative in that no compromise or division of sovereignty is entailed.

Strong legal pluralism, in contrast, refers to entities that create their authority independent, and even in some cases in defiance, of supposed superior authority, and thereby at least complicate, if not refute such authority's claim to sovereignty. Of course, also, strong legal pluralism would apply to situations in which compacting entities created a new level of authority, and maybe even sovereignty, while still retaining their own legal legitimacy. Federalist theory and history would seem to be an obvious arena for parsing out such distinguishing features of legal pluralism in action. I’ll have a post (maybe the next one) providing – among other things – such theoretical and historical parsing. Indeed, as I’ve noted elsewhere, this distinction between strong and weak is a valuable one for assessing federalist claims quite aside of specifically pluralist considerations.

While the strong-weak distinction has been addressed previously, and likely for most observers seems pretty intuitive, Griffiths provides a second vector of distinction within legal pluralism which may not be as obviously intuitive, but I think has a lot of value in pondering. This is his distinction between corporate and processual legal pluralism. The former refers to established groups with clear boundaries – geographic or organizational – within the body of the larger entity: e.g., feduns in a federation or guilds within free medieval towns. Again, this form of legal pluralism seems naturally intuitive, and such groups or entities would clearly fall under the categories of either weak or strong forms of legal pluralism. Where Griffiths’ observation may seem less intuitive and perhaps more open to doubt is in the case of processual legal pluralism.

This processual legal pluralism is identified as the social locus of law in often rather amorphous, overlapping and competing, more or less “semi-autonomous social fields.” For the unpacking of this fourth dimension of legal pluralism, Griffiths leans heavily upon the theory, and draws his most intriguing case study example from the scholarship, of Sally Moore. I’m considering a deeper dive into Moore's original approach to this topic. In case I end up not doing so, I’d still recommend reading her relevant work for those interested in these nuanced theoretical wrinkles in the study of legal pluralism.²

Moore’s analysis, which Griffths draws upon, is centered on practices, formal and informal, followed within the New York garment industry. It turns out that within this “semi-autonomous social field” there is an essential integrating operative network of norms, customs, patronage, and extra-judicial sanctions. Not only do these largely function outside of the reach of state mandated law, but in some cases they clearly violate that law. However, as Moore explains in detail, the very lifeblood of the industry, given its particularistic qualities (emphasized by both Moore and Griffiths), depends upon these informal (dare we say, customary) law practices.

In effect, while such norms, patronage, and extra-judicial sanctions may not seem to be “law” in the conventional sense of the word, anyone paying attention along the way of this series on the lessons of legal pluralism will recognize that they certainly are laws, in that they constitute a shared regime of enforceable expectations about behaviors necessary for sustaining the community (or industry in this case). 

Likewise, such law clearly has pluralist dimensions, in the strong sense of the word, as it operates independently (and sometimes even in defiance of) that centralist sovereignty which might formally claim a monopoly on the law. After all our talk in this series of the medieval constitution, the New York garment industry seems like a peculiar place to find customary law, not only operating, but thriving. But there you go, and surely there’s valuable lessons in that for temporalists.

The theoretical and strategic implications of these distinctions are interesting. Corporate legal pluralism has both benefits and costs. The benefits include the ability to formalize and so self consciously assert group autonomy from the centralist state’s (or other form of monist authority’s) claim of sovereignty. The accompanying cost though is that such a formal structure is more easily recognized, identified, and targeted by the aspiring sovereign in its legal monist ambitions.  

The sphere of processual legal pluralism is both more difficult to identify (i.e., make legible, in the argot of James Scott) and so to target, due to its characteristic amorphousness. Also, important in this distinction is that such processual legal pluralism may continue to operate, and possibly thrive, even in the face of aggressive centralist sovereign aspiration. Such processual legal pluralism may in fact be the inexhaustible source of temporalist freedom from the regime of spatialist hegemony. 

While the next while I’ll be focusing more on the implications of the lessons from legal pluralism for a deeper understanding of federalism generally, and probably the U.S. founding in particular, undoubtedly this topic of processual legal pluralism, and the potential role of semi-autonomous social fields, is one to which we will need to return down the road. So, if you’d like to be the first to catch up on all of that exciting stuff, soon as its posted, and haven’t yet, please…

And as ever, if you know anyone else who’d be interested in what we get up to over here, by all means, do…

Meanwhile: be seeing you!

1. John Griffiths, “What Is Legal Pluralism?,” The Journal of Legal Pluralism and Unofficial Law 18, no. 24 (January 1, 1986), https://www.tandfonline.com/doi/abs/10.1080/07329113.1986.10756387

2. Sally Falk Moore, Comparing Impossibilities: Selected Essays of Sally Falk Moore (HAU, 2016).