As societies continue to undertake different processes of development, gradual movements from simplistic to more complex and overarching designs of social regulation and order would be an inevitable social consequence. Pluralist societies are usually characterized by the idea that the universe is explainable in many principles, without any particular system prescribed as means of description. This perception has been justified by the notion that societies are composed of many ultimate substances. Thus, it can be sensibly assumed that pluralistic ideas (as basis for social actions) may possibly lead to the propagation of conflicting and competing mode of processes and delineation of orders. In essence, the resulting social condition can be interpreted similarly with similar resulting effects like that of a dialectical process. Given that the basic tenet of dialectical materialism states that- changes takes place through the struggle of opposites- it follows that general assumption would be that such “conflicts” would eventually lead to growth, change, and development. It would be an interesting point of consideration to find out if the existence of conflicting orders within a particular social field would yield similar result.
The progressive pace of development is associated with the creation of more complex levels of organizations. It is further characterized by technological advances which facilitate fast transactional exchanges. Thus, there seems to be a need to catch up with social growth elicited the proliferation of appropriate social orders and regulations that could keep up with the speedy pace of economic, technological, and social progress. Due to the present complexities of regulations and normative orders, the possibility of clashes and conflicts would most likely to occur. Occurrences of such may happen when customary norms are inconsistent with formal legal orders. Oftentimes, such situations would breed competing reactions from stakeholders. Involved social actors would, most likely have, a stake or interest that they would try to protect, thus efforts would be exerted in imposing power over the other group (if possible).
To point out the essential factors in this dynamic, people involved are basically aware about the coexistence of competing systems of order in a given social setting. These multiple regulations and orders also promulgate competing claims of authority for concerned individuals. Social actors are, more often than not, probably aware that particular actors may possibly possess more power (i.e. resources, connections, opportunities) over them. This awareness of “inequality” might possibly tip off the balance of justice. In other words better equipped social actors would most likely to try to exploit these advantageous positioning in complex situations that best characterizes legal pluralism.
Prior studies on legal pluralism focuses on the relationship between customary and state law during the colonization era, in addition to other kinds of self–regulations within the business settings, ethnic and local communities, and other realms of society. John Griffiths, in his seminal paper, “What is Legal Pluralism?” describes the concept of legal pluralism as “the presence in a social field of more than one legal order”. Furthermore, Sally Folk Moore pointed out in her seminal paper, “Law and social change: The Semi-autonomous social field as an appropriate subject of study”, that the best field of observation for the study of law and social change in complex societies is the semi-autonomous field. That is, due to the “inadequacy of instrumentalism” and its “relevance to the social workings of legislation” (Griffiths, 1986).
Rich stocks of literature suggest various theories and concepts on legal pluralism, thereby suggesting further that legal pluralism has become an essential field of study for social scientists alongside fields of legal anthropology, sociology, political science, and other fields of the social sciences. Benda-Beckmann wrote that legal pluralism has been “one of the most controversial and interesting concepts in the sociology of law and legal theory” (Benda-Beckmann, 2001:18-19). This claim was further attested with heated debates at that time, surrounding the monopolistic claims of the states on the creation and maintenance of law, thus, ,marginalization and exclusion of individuals (in terms of their rights and privileges) are inevitable results.
In order to examine the impact of multiple orders in a complex society, I chose to look into social concerns involving natural resources and rights. In line with the process of development, conservation and sustainability on natural resources become a global concern. Alarming rates of forest degradation, negative effects of climate change, massive extraction of mineral reserved, improper utilization of forest and aquamarine resources, etc., are but a short list of natural resource concerns of the world today. As a response, nation states and international organizations initiated the development of social policies and programs, provisions of grants to academic institutions and stakeholders, among others. Civic organizations took part with this initiative by generating funds to be used for environmentally- related research, for organizing people’s organizations and for conducting capacity building initiatives, with the ultimate goal of eliciting collaborative and participatory actions and processes between governments, social groups, down to the local communities and individuals. Majority of nation-states governments nowadays call for the preservation and proper utilization of natural resources.
However, if one would look into some of the existing laws and policies in nation states, one would find that these are not enough to protect and promote the rights of common people in marginalized sectors of society. In cases of implementing laws which advocates and promotes the rights of local people and communities (i.e., as “caretakers” and managers of natural resources, as mandated by CBNRM/CBFM laws) it sometimes happen that these legal orders would end up to be in conflict with customary laws (like the conflicting effect of IPRA implementations with some customary norms in relation to ancestral domains). Even international laws which were suppose to protect and promote indigenous peoples rights from repressive/restrictive state laws, would end up entangled with other universal treatises (example is the ramification of Article 26 of Agenda 21 and the Rio, which subordinated indigenous people’s human rights in favor of universal environmental concerns).
Thus, it shows that formal legal orders’ entanglement with other recognized normative systems may possibly become oppressive and/or repressive to the individual’s rights that it supposes to uphold. It looks as if, in a democratic setting that- the state law, clothed with its noble aim (with its intent to create order) of empowering people by acknowledging their rights is, at the same time, the very same force that causes conflict and marginalization to underprivileged and less-able individuals. One possible means for this to happen is when state law allow autonomous governmental agencies to impose different policies as they deem necessary, without conducting necessary baseline researches to ensure maximum results without complicating the social field that it aspires to dominate.
As a result, one question that permeates into one’s consciousness would perhaps be; if there are indeed cases wherein formal orders eventually end up defeating its own purpose, do we really need more laws and regulatory mandates to address social conflicts? Wouldn’t it probably be better to realign the currently existing multiple legal mandates in order to come up with easier, doable, and simpler solutions to recurring and ingrained social problems?
Ideally, social order should show the way to social justice which would, in effect, ensure equal spaces for each person to exercise their rights. Thus, social orders/regulations should serve its purpose(s)- which is to promote equality and empowerment to the marginalized sectors of society when benefits of social justice is available for everyone. Only then, would a sense of balance in terms of the existence of legal regulations would promote enabling environment for people to exercise their rights.
Thus, more than the challenge of maintaining order and finding a way to secure an “observable” field to monitor the overarching clouts of regulations and norms in a complex society, implications of the existence of many legal orders and normative systems in a particular field of society should be an equal concern for policy makers. An ideally crafted law/policy would not possibly end up with an opposite result if the implementing rules’ construct would not elicit oppressive/repressive impact on the marginalized sector of society.
At hindsight, it may appear at first that legal pluralism depicts a paradoxical scenario in a complex society, whereby the purpose of social orderings seems to defeat itself within the dynamics of interactions in a democratic setting. Possible “clashes”, as a result of simultaneous implementation of such may cause more conflicts, misunderstandings, and oppression to the marginalized sector. To look at it the other way, legal pluralism is favorable to the marginalized sector because it allows them to have more choices, it gives them more freedom to exercise and fight for their rights. It other words, it is a means to level the playing field.
In conclusion, it appears that with legal pluralism, the oppressed is not as helpless at it seems when a paradoxical condition arises that is most likely emancipated by legal pluralism. The chance for the marginalized to pursue equality comes with the danger of being tangled up in a complex social setting that allows for the existence of multiple social ordering. Legal pluralism creates a condition that becomes a leveling factor that would prevent the individual social actor to be lost within the overarching different orders in a complex and pluralist environment.
References:
Keebet von Benda-Beckmann, 2001, “Legal Pluralism”, Traditional Law and Values in Thai Societies, Thai Culture International Review on Tai Cultural Studies, Volume VI, No. 1&2, p.18-19.
Griffiths, John, 1986 “What is legal pluralism?” Journal of Legal Pluralism No. 24.
©2009leofinajanegalleta
All Rights Reserved.
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Leofina Jane
Through the Lenses of Legal Pluralism
August 30, 2009 — Leofina JaneAs societies continue to undertake different processes of development, gradual movements from simplistic to more complex and overarching designs of social regulation and order would be an inevitable social consequence. Pluralist societies are usually characterized by the idea that the universe is explainable in many principles, without any particular system prescribed as means of description. This perception has been justified by the notion that societies are composed of many ultimate substances. Thus, it can be sensibly assumed that pluralistic ideas (as basis for social actions) may possibly lead to the propagation of conflicting and competing mode of processes and delineation of orders. In essence, the resulting social condition can be interpreted similarly with similar resulting effects like that of a dialectical process. Given that the basic tenet of dialectical materialism states that- changes takes place through the struggle of opposites- it follows that general assumption would be that such “conflicts” would eventually lead to growth, change, and development. It would be an interesting point of consideration to find out if the existence of conflicting orders within a particular social field would yield similar result.
The progressive pace of development is associated with the creation of more complex levels of organizations. It is further characterized by technological advances which facilitate fast transactional exchanges. Thus, there seems to be a need to catch up with social growth elicited the proliferation of appropriate social orders and regulations that could keep up with the speedy pace of economic, technological, and social progress. Due to the present complexities of regulations and normative orders, the possibility of clashes and conflicts would most likely to occur. Occurrences of such may happen when customary norms are inconsistent with formal legal orders. Oftentimes, such situations would breed competing reactions from stakeholders. Involved social actors would, most likely have, a stake or interest that they would try to protect, thus efforts would be exerted in imposing power over the other group (if possible).
To point out the essential factors in this dynamic, people involved are basically aware about the coexistence of competing systems of order in a given social setting. These multiple regulations and orders also promulgate competing claims of authority for concerned individuals. Social actors are, more often than not, probably aware that particular actors may possibly possess more power (i.e. resources, connections, opportunities) over them. This awareness of “inequality” might possibly tip off the balance of justice. In other words better equipped social actors would most likely to try to exploit these advantageous positioning in complex situations that best characterizes legal pluralism.
Prior studies on legal pluralism focuses on the relationship between customary and state law during the colonization era, in addition to other kinds of self–regulations within the business settings, ethnic and local communities, and other realms of society. John Griffiths, in his seminal paper, “What is Legal Pluralism?” describes the concept of legal pluralism as “the presence in a social field of more than one legal order”. Furthermore, Sally Folk Moore pointed out in her seminal paper, “Law and social change: The Semi-autonomous social field as an appropriate subject of study”, that the best field of observation for the study of law and social change in complex societies is the semi-autonomous field. That is, due to the “inadequacy of instrumentalism” and its “relevance to the social workings of legislation” (Griffiths, 1986).
Rich stocks of literature suggest various theories and concepts on legal pluralism, thereby suggesting further that legal pluralism has become an essential field of study for social scientists alongside fields of legal anthropology, sociology, political science, and other fields of the social sciences. Benda-Beckmann wrote that legal pluralism has been “one of the most controversial and interesting concepts in the sociology of law and legal theory” (Benda-Beckmann, 2001:18-19). This claim was further attested with heated debates at that time, surrounding the monopolistic claims of the states on the creation and maintenance of law, thus, ,marginalization and exclusion of individuals (in terms of their rights and privileges) are inevitable results.
In order to examine the impact of multiple orders in a complex society, I chose to look into social concerns involving natural resources and rights. In line with the process of development, conservation and sustainability on natural resources become a global concern. Alarming rates of forest degradation, negative effects of climate change, massive extraction of mineral reserved, improper utilization of forest and aquamarine resources, etc., are but a short list of natural resource concerns of the world today. As a response, nation states and international organizations initiated the development of social policies and programs, provisions of grants to academic institutions and stakeholders, among others. Civic organizations took part with this initiative by generating funds to be used for environmentally- related research, for organizing people’s organizations and for conducting capacity building initiatives, with the ultimate goal of eliciting collaborative and participatory actions and processes between governments, social groups, down to the local communities and individuals. Majority of nation-states governments nowadays call for the preservation and proper utilization of natural resources.
However, if one would look into some of the existing laws and policies in nation states, one would find that these are not enough to protect and promote the rights of common people in marginalized sectors of society. In cases of implementing laws which advocates and promotes the rights of local people and communities (i.e., as “caretakers” and managers of natural resources, as mandated by CBNRM/CBFM laws) it sometimes happen that these legal orders would end up to be in conflict with customary laws (like the conflicting effect of IPRA implementations with some customary norms in relation to ancestral domains). Even international laws which were suppose to protect and promote indigenous peoples rights from repressive/restrictive state laws, would end up entangled with other universal treatises (example is the ramification of Article 26 of Agenda 21 and the Rio, which subordinated indigenous people’s human rights in favor of universal environmental concerns).
Thus, it shows that formal legal orders’ entanglement with other recognized normative systems may possibly become oppressive and/or repressive to the individual’s rights that it supposes to uphold. It looks as if, in a democratic setting that- the state law, clothed with its noble aim (with its intent to create order) of empowering people by acknowledging their rights is, at the same time, the very same force that causes conflict and marginalization to underprivileged and less-able individuals. One possible means for this to happen is when state law allow autonomous governmental agencies to impose different policies as they deem necessary, without conducting necessary baseline researches to ensure maximum results without complicating the social field that it aspires to dominate.
As a result, one question that permeates into one’s consciousness would perhaps be; if there are indeed cases wherein formal orders eventually end up defeating its own purpose, do we really need more laws and regulatory mandates to address social conflicts? Wouldn’t it probably be better to realign the currently existing multiple legal mandates in order to come up with easier, doable, and simpler solutions to recurring and ingrained social problems?
Ideally, social order should show the way to social justice which would, in effect, ensure equal spaces for each person to exercise their rights. Thus, social orders/regulations should serve its purpose(s)- which is to promote equality and empowerment to the marginalized sectors of society when benefits of social justice is available for everyone. Only then, would a sense of balance in terms of the existence of legal regulations would promote enabling environment for people to exercise their rights.
Thus, more than the challenge of maintaining order and finding a way to secure an “observable” field to monitor the overarching clouts of regulations and norms in a complex society, implications of the existence of many legal orders and normative systems in a particular field of society should be an equal concern for policy makers. An ideally crafted law/policy would not possibly end up with an opposite result if the implementing rules’ construct would not elicit oppressive/repressive impact on the marginalized sector of society.
At hindsight, it may appear at first that legal pluralism depicts a paradoxical scenario in a complex society, whereby the purpose of social orderings seems to defeat itself within the dynamics of interactions in a democratic setting. Possible “clashes”, as a result of simultaneous implementation of such may cause more conflicts, misunderstandings, and oppression to the marginalized sector. To look at it the other way, legal pluralism is favorable to the marginalized sector because it allows them to have more choices, it gives them more freedom to exercise and fight for their rights. It other words, it is a means to level the playing field.
In conclusion, it appears that with legal pluralism, the oppressed is not as helpless at it seems when a paradoxical condition arises that is most likely emancipated by legal pluralism. The chance for the marginalized to pursue equality comes with the danger of being tangled up in a complex social setting that allows for the existence of multiple social ordering. Legal pluralism creates a condition that becomes a leveling factor that would prevent the individual social actor to be lost within the overarching different orders in a complex and pluralist environment.
References:
Keebet von Benda-Beckmann, 2001, “Legal Pluralism”, Traditional Law and Values in Thai Societies, Thai Culture International Review on Tai Cultural Studies, Volume VI, No. 1&2, p.18-19.
Griffiths, John, 1986 “What is legal pluralism?” Journal of Legal Pluralism No. 24.
©2009leofinajanegalleta
All Rights Reserved.
Share this Post