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Written by: Pierre Merlet
Type of document: Paper / Document for wide distribution
In Western societies, it is common to adhere to a vision of law and the state that is close to the concept of legal centralism and implies that the law is composed solely of the law of the state.
Legal pluralism takes the counterpart of this vision and recognizes the simultaneous existence of several legal orders or normative frameworks, regardless of the period, place or general context in which one finds oneself.
In the work carried out by AGTER, legal pluralism has two main implications :
with regard to the understanding of the mechanisms that govern the management of natural resources
with regard to policies and interventions related to natural resource management
The document of Pierre Merlet, downloadable here, was presented and discussed during an internal reflection meeting of the AGTER team, on 2 December 2010, in Nogent sur Marne, in which Professor Etienne Le Roy, one of the pioneers of the legal pluralism approach, participated.
Translated with www.DeepL.com/Translator
Brief description of the concept of legal pluralism
In Western societies, it is common to adhere to a vision of law and state that is close to the concept of legal centralism and implies that the law is composed solely of the law of the state, or as Griffiths states: »Law is and should be the law of the state, uniform for all persons, exclusive of all other law and administered by a single set of state institutions« (Griffiths, 1986:3).
Legal pluralism counterbalances this vision and recognizes the simultaneous existence of several legal orders or normative frameworks, regardless of the period, place or general context in which we find ourselves (Griffiths, 1986). It seems that the concept was initially introduced by legal anthropologists who studied the evolution of legal systems in decolonization contexts where several legal orders could be observed simultaneously (e. g. colonial law and customary law) but it quickly spread as an analytical approach to study all kinds of legal situations in all kinds of contexts (F. and K. Von Benda-Beckmann, 2006).
It is important to note that legal pluralism is not a homogeneous approach. Indeed, while all the authors agree on the existence of a plurality of normative frameworks, they differ when it comes to defining what can be considered as a normative framework (or more precisely, how to define whether a normative framework can be considered as falling within the law). As a result, their main point of divergence lies in their definition of the term ’law’ (see Tamanaha (2000), Barrière (2006), F. and K. Von Benda Beckmann (2006), Le Roy (1999) for different definitions of the term ‘law’). However, all approaches related to legal pluralism overlap in the following aspects:
Legal pluralism implies questioning legal centralism. As a result, it also leads to the questioning of the sovereign power of the nation-state and the recognition that in any society there are other forms of imposing norms and rules than the authority of the state (Berman, 2007). This means that the law is not only the law of the state and that the state is not the only actor able to enforce its normative framework.
Legal pluralism recognizes a broad definition of the law. Here, the law is not only composed of the law promulgated by the state. For example, Le Roy (1999) explains that the law comes from three different sources: general and impersonal norms (i.e. state-defined norms based on codes or case law), behavioural patterns (i.e. customs) and systems of sustainable dispositions (i.e. the Habitus introduced by Bourdieu (1986)). These three sources of law still coexist, but depending on the context in which we find ourselves, society will give more weight to one or the other of these sources. For example, Western society prioritizes the first pillar, which is directly related to the predominance of the concept of legal centralism.
The coexistence of different normative frameworks described by legal pluralism actually corresponds to the coexistence of a multiplicity of social spaces (or fields) within the same geographical space (Moore, 1978; Vanderlinden, 2003; Berman, 2007). Moreover, it is the fact that a person belongs to several social spaces at the same time, and thus depends on several normative frameworks, that is responsible for the fact that legal pluralism is a reality regardless of the context, place and time in which one finds oneself. This aspect is clearly presented by Le Roy when he says that: « Each individual is involved, in his family, professional or public life, in multiple groups whose rules, regulations, habits or habitus are imposed on him in a more or less competitive manner » (Le Roy, 1993 :80)
Most authors recognize the following common characteristics of these social spaces:
They have the ability to produce and enforce standards independently.
Their ability to create and enforce norms is constantly influenced by the norms and rules of surrounding social spaces (which is why Moore (1978) refers to semi-autonomous social fields).
There is no hierarchy between these social spaces. In particular, the state is not, by nature, a hierarchically superior actor (which does not mean that the state is not an important actor)
Within each of these social spaces, and between these same spaces, there is a multiplicity of social actors. The establishment of a normative framework and the ability to enforce it will depend directly on the social relations and power relations between these different actors (Merry, 1988; Anders, 2003; Berman, 2007) both within and between each space. Therefore, the key point in the establishment and respect of standards lies in these social relations.
Legal pluralism and natural resource management
The previous description shows that legal pluralism emphasizes the importance of social relations and power relations between social actors in the establishment and respect of norms and rules. Considering on the one hand that land and natural resource rights are social constructions and respond to social relationships between different actors and on the other hand that there is always a cluster of rights and rights holders in relation to land and natural resources (Merlet, 2007; Lavigne Delville and Chauveau, 1998; Le Roy, 1996), this results in a clear link with an analytical approach such as legal pluralism. Indeed, in most cases, the rights held by different actors do not correspond to a single normative system and the rights that are actually respected in the field refer to different normative systems (i.e. they do not only correspond to the law of the state, and they are not only enforced by the latter) and depend on the power relations that exist between different actors.
More concretely, in the work carried out by AGTER, legal pluralism has two main implications:
Implications for understanding the mechanisms that govern natural resource management
Legal pluralism is an essentially socio-institutional approach that emphasizes the importance of social relations and power relations in the establishment and respect of normative frameworks. Therefore, if this approach is adopted, it becomes essential to acquire an in-depth understanding of these social and power relations, and not only normative frameworks related to land and natural resource management, to understand how norms and rules are constructed and why some rules are respected and others not.
More precisely, this means that rights over natural resources depend directly on the social spaces or fields that exist and the balance of power and negotiation processes between the social actors that compose them. Understanding these processes therefore becomes necessary to understand what people do, and why they do it. For example, by adopting a pluralistic approach, one of the factors that explains how people may or may not be able to enforce their rights in a particular context is what is known in English as’Forum Shopping’. Forum shopping’ refers to the fact that each individual may have the ability, depending on existing social relationships, to choose among the different existing normative frameworks the one that best corresponds to his or her objectives and allows him or her to enforce his or her rights (Meinzen-Dick and Pradhan, 2002).
In concrete terms, in the context of natural resource management, a pluralistic approach will therefore lead to the following aspects: the identification of places, or’forums’, in which the social processes that lead to the definition and respect of rights take place and the understanding of the mechanisms for negotiating and confronting divergent interests within these’forums’. The problem of forums (what type of forum is needed? how they will operate?) then becomes central, not as spaces with purely technical functions and depoliticization of conflicts, but as the place where political struggles related to access and resource management take place.
Implications for policies and interventions related to natural resource management
Legal centralism implies that state law is the best (and only) way to command/direct the actions of individuals. As a result, the state’s ability to implement and enforce laws is the main factor in natural resource management and all interventions related to natural resource management must be aligned with the law. It is clear that the validity of this argument depends directly on the’strength’ of the state, i.e. its ability and legitimacy to establish and enforce its normative framework (which is not the case in most developing countries).
Legal pluralism goes further in challenging this vision by arguing that, whatever the context, the state is not the only or most important social space to be taken into consideration. A pluralistic approach recognizes that people’s behaviour does not only depend on the state and its ability to enforce the law. More precisely, the pluralist approach recognizes on the one hand the coexistence of a multiplicity of social spaces with their own normative frameworks and on the other hand the importance of social relations and power relations in the establishment of and respect for these normative frameworks.
As a result, this implies that the management of natural resources is not only a problem of laws or rules but also a question of social struggles, power relations and negotiation processes. The landscape thus becomes much more complex in terms of understanding the factors that govern natural resource management, but this also broadens the scope of possible interventions.
Depending on the social spaces and power relations involved, interventions may no longer be limited to changing the law of the state or to respecting its normative framework (support for the creation and respect of normative frameworks, interventions aimed at changing existing power relations or increasing or decreasing the bargaining power of certain actors). This does not mean that the state is not important, but its role will depend on the balance of power between the state and the other actors present. More specifically, an important point regarding the state will be the level of recognition it gives to other existing normative frameworks, which becomes a central aspect of interventions related to natural resource management.
On the other hand, theories concerning the role and construction of institutions 1 for natural resource management are of great importance here. If we consider, as Ostrom (1995) did, that it is possible to build institutions that lead to effective collective action in the management of natural resources, we will have to intervene on the construction of and respect for the normative frameworks that play a role in the management of natural resources as well as on their interweaving and coherence. Conversely, if we adopt Cleaver’s (2002, 2007) vision that individuals are « bricoleurs », that is, they build their own resource management mechanisms according to existing normative frameworks, their way of thinking and especially social relations with other actors, we will tend to prioritize interventions affecting power relations and aiming to increase the power of some actors over others in the negotiation processes around natural resource rights.
1 An institution is a set of rules or standards.
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Anders, G. (2003) “Legal pluralism in a transnational context: where disciplines converge”, Cahier d’anthropologie du droit, 2003:113-128
Barrière, O. (2006) “De l’émergence d’un droit africain de l’environnement face au pluralisme juridique” in: C. - Eberhard and G. Vernicos (eds) (2006) La quête anthropologique du droit, Paris, Karthala, pp.147-172
Berman, P.S. (2007) “Global Legal Pluralism” Southern California Review, 80(6):1155-1237
Bourdieu, P. (1986) “Habitus, Code et Codification” Actes de la recherche en sciences sociales, 64:40-44
Cleaver, F. (2002) ‘Reinventing institutions : Bricolage and the social embeddedness of natural resources management’ The European Journal of development research 14(2):11-30
Cleaver, F. (2007) “Understanding Agency in Collective Action”, Journal of Human Development 8 (2): 223-244
Griffiths, J. (1986) “What is Legal pluralism?” Journal of Legal Pluralism and Unofficial Law (24): 1-55
Lavigne Delville P., Chauveau JP (1998) « Quels fondements pour des politiques foncières en Afrique francophone » in : P.Lavigne Delville (ed.) Quelles politiques foncières pour l’Afrique rurale ? », Karthala, Paris
Le Roy, E. (1993) “Les recherches sur le droit interne des pays en développement - Du droit du développement à la définition pluraliste de l’État de droit” in : C. Choquet, O. Dollfus, E.,Le Roy, M. Vernières (eds.) Etat des savoirs sur le développement : trois décennies de sciences sociales en langue française, Paris, Karthala, pp.75-86
Le Roy, E., (1996) “La théorie des maîtrises foncières“ in : E. Le Roy, A. Karsenty, A. Bertrand (eds.) La sécurisation foncières en Afrique, pour une gestion viable des ressources renouvelables, Paris, Karthala, pp. 59-76
Le Roy, E. (1999) Le jeu des lois – Une anthropologie “dynamique” du Droit Paris, Librairie générale de droit et de jurisprudence
Meinzen,-Dick, R.S. & Pradhan, R. (2002) “Legal Pluralism and Dynamic Property Rights”, CAPRI working papers n°22, Washington D.C., IFPRI, pp. 1-16 (selected part).
Merlet, M. (2007) Proposal paper. Land Policies and Agrarian Reforms, Paris, Agter, online available www.agter.asso.fr/article12_es.html (last consulted 24/05/2010)
Moore, S.F. (1978) “Law and social change: the semi-autonomous social field as an appropriate subject of study”, in: Moore, S.F. Law as process, London, Routledge & Kegan Paul: 54-81.
Merry, S.E. (1988) “Legal Pluralism” Law and Society Review, 22(5):870-896
Ostrom, E. (1995), “Designing Complexity to Govern Complexity” in: S.Hanna and M.Munasinghe (eds.) Property Rights and the Environment Washington, U.S.A , Beijer International Institute of Ecological Economics and the World Bank
Tamanaha, B.Z. (2000) “A Non-Essentialist Version of Legal Pluralism” Journal of Law and society, 27(2):296-321
Vanderlinden, J. (2003) “Trente ans de longue marche sur la voie du pluralisme juridique” Cahier d’anthropologie du droit, 2003:21-34
Von Benda Beckmann F. and K. (2006) “The dynamics of change and continuity in plural legal orders” Journal of legal pluralism and unofficial law 53-54:1-44