Manifestations and Arguments: The Everyday Operation of Transnational Legal Pluralism

Abstract

While the term ‘legal pluralism’ literally denotes a plurality of legal orders, it is the plurality of and the distinguishing features between them, which continues to make the subject matter a very charged and hotly debated one. Seen through the lens of legal sociology and anthropology, the plurality of co-existing, normative orders appears, above all, as a matter of description, as a fact of social ordering. Meanwhile, as some of these normative systems are being claimed as being ‘law’ while others are associated with non-legal forms of social order, such as customary, traditional, or indigenous norms as well as, perhaps, sector-specific rules of professional or industry conduct, the categories used to draw the lines between legal and non-legal norms become in themselves highly contentious. The chapter argues that to neglect the fundamental distinction between legal pluralism as ‘manifestation’ and as ‘argument’ perpetuates a troubling inability on the part of positivist and analytical legal theory to engage with law’s inherent instability. Especially at a time, where the actors, norms and processes that together constitute and shape emerging transnational regulatory regimes are located and operating within and beyond the state as the purportedly singularly competent authority of law creation and enforcement, the deconstruction of ‘legal pluralism’ as ‘non-law’ and threat to the state can serve as the foundation for a new, critical legal theory.

Keywords: Legal Pluralism; Transnational Legal Pluralism; State; Legal Positivism; Interdisciplinarity; Postcolonial Legal Theory; Legal Sociology; Legal Anthropology; Transnational Law; Transnational Regulatory Governance