Legal Pluralism
Author(s): Sally Engle Merry
Source: Law & Society Review , 1988, Vol. 22, No. 5 (1988), pp. 869-896
Published by: Wiley on behalf of the Law and Society Association
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LEGAL PLURALISM
SALLY ENGLE MERRY
I. INTRODUCTION
The intellectual odyssey of the concept of legal pluralism
moves from the discovery of indigenous forms of law among remote
African villagers and New Guinea tribesmen to debates concerning
the pluralistic qualities of law under advanced capitalism.
In the last decade, the concept of legal pluralism has been applied
to the study of social and legal ordering in urban industrial societies,
primarily the United States, Britain, and France. Indeed,
given a sufficiently broad definition of the term legal system, virtually
every society is legally plural, whether or not it has a colonial
past. Legal pluralism is a central theme in the reconceptualization
of the law/society relation.
Early twentieth century studies examined indigenous law
ways among tribal and village peoples in colonized societies in Africa,
Asia, and the Pacific. Social scientists (primarily anthropologists)
were interested in how these peoples maintained social order
without European law (e.g., Malinowski, 1926). As they documented
the rich variety of social control, social pressure, custom,
customary law, and judicial procedure within small-scale societies,
these anthropologists gradually realized that colonized peoples had
both indigenous law and European law. Colonial law was reshaping
the social life of these villages and tribes in subtle ways,
even when it seemed remote. Indeed, as Chanock observed for colonial
Africa, "The law was the cutting edge of colonialism, ..."
(1985: 4). Tribes and villages had some law developed over the
generations on to which formal rational law was imposed by the
European colonial powers. The imposed law, forged for industrial
capitalism rather than an agrarian or pastoral way of life, embodied
very different principles and procedures. Scholars termed
these situations legal pluralism. They recognized that the introduction
of European colonial law created a plurality of legal orders
but overlooked, to a large extent, the complexity of previous legal
orders.
For the proponents of empire in the nineteenth century, this
imposition of European law was a great gift, substituting civilized
This article was completed in February, 1988 and covers literature from
1978 to early 1988. I am grateful to Peter Fitzpatrick, John Griffiths, Christine
Harrington, Robert Hayden, Stuart Henry, and June Starr for helpful suggestions
and comments on earlier drafts.
LAW & SOCIETY REVIEW, Volume 22, Number 5 (1988)
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870 LEGAL PLURALISM
law for the anarchy and fear that they believed gripped
the colonized peoples, freeing them from the scourge
witchcraft, and tyranny (Ranger, 1983). In Africa, the B
the French superimposed their law onto indigenous la
rating customary law as long as it was not "repugnant
justice, equity, and good conscience," or "inconsistent
written law," (Okoth-Ogendo, 1979: 160; Adewoye, 1986:
Enchill, 1969). The repugnancy principle was used to o
ceptable African customs. That the European legal sy
helped to mold a cooperative labor force to serve the new extractive
industries or to produce cash crops for export was probably
not lost on the colonial administrators (cf., Chanock, 1985;
Comaroff, 1985; Comaroff and Comaroff, 1986; Moore, 1986a).
Yet, legal pluralism goes far deeper than the joining of European
and traditional forms of law. We are only now beginning to
explore the extent to which previously colonized societies are legally
and culturally plural. The Europeans were not the first
outside influence bringing a new legal system to many Third
World peoples. Indigenous law had been shaped by conquests and
migrations for centuries. For example, Geertz describes the legal
complexity of Java as the product of the encounters of an original
group of settlers from South China and north Vietnam with India
states, Chinese trading communities, Islamic missionaries, Dutch
and British colonizers, Japanese occupation forces, and presently,
the Indonesian state (1983: 226). As we engage in careful historical
study, we throw off the notion that the pasts of traditional societies
were unchanging (Ranger, 1983; Chanock, 1985).
What is legal pluralism? It is generally defined as a situation
in which two or more legal systems coexist in the same social field
(Pospisil, 1971; Griffiths 1986a; Moore, 1986a).1 Pospisil, in his pioneering
work on legal levels, claims that "every functioning subgroup
in a society has its own legal system which is necessarily different
in some respects from those of the other subgroups" (1971:
107). By subgroups he means units such as family, lineage, community,
and political confederation that are integral parts of a homogenous
society, hierarchically ranked, and essentially similar in
rules and procedure. Recent work defines "legal system" broadly
to include the system of courts and judges supported by the state
as well as nonlegal forms of normative ordering. Some of these
are part of institutions such as factories, corporations, and universities
and include written codes, tribunals, and security forces,
sometimes replicating the structure and symbolic form of state law
(Macaulay, 1986; Henry, 1983). Other normative orders are informal
systems in which the processes of establishing rules, securing
1 In an important essay on the definition of legal pluralism, Griffiths defines
it as "that state of affairs, for any social field, in which behavior pursuant
to more than one legal order occurs (1986a: 2)."
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MERRY 871
compliance to these rules, and punishing rulebreak
ral and taken for granted, as occurs within families,
and collectives (Abel, 1982; Henry, 1985). Thus, vir
ciety is legally plural. This approach runs the risk
legal system so broadly that all social control form
(see further Comaroff and Roberts, 1981).
Griffiths distinguishes between the "social scien
legal pluralism as an empirical state of affairs in s
istence within a social group of legal orders that do n
single "system") and what he calls a "juristic" view
ism as a particular problem of dual legal systems c
ropean countries established colonies that superim
systems on preexisting systems (1986a: 5, 8). A leg
ralistic in the juristic sense when the sovereign co
ent bodies of law for different groups of the popula
ethnicity, religion, nationality, or geography, and w
legal regimes are all dependent on the state legal s
uation creates a range of complex legal problems,
to decide when a subgroup's law applies to a partic
or conflict, to what group particular individuals belo
son can change which law is applicable to him or
Africans in the colonial era, for example, chafed at being judged
under African law rather than European law), choice of law rules
for issues between people of different groups, and determinations
of which subjects, particularly family law, and in which geographical
areas subgroup law should be accepted (Griffiths, 1986a: 7). It
is often difficult to determine what the subgroup's rules are, particularly
when they are not part of a written tradition. As we will
see below, even those legal systems with written codes, such as Islamic
law, are often embedded in very different ways of thinking
about the fact/law dichotomy, the nature of evidence, and the
meaning of judging (Rosen, 1980-81; Geertz, 1983; Messick, 1986).
Hooker provides a masterful and comprehensive overview of
legal pluralism in this sense, surveying plural legal systems in
Asia, Africa, and the Middle East (1975). He defines legal pluralism
as circumstances "in the contemporary world which have resulted
from the transfer of whole legal systems across cultural
boundaries" (Ibid.: 1). Legal problems of the juristic kind confront
leaders of many post-colonial societies, who widely regard their
complex legal systems as frustrating, messy, and obstructive to
progress (Bentsi-Enchill, 1969; Griffiths, 1986a). Contemporary
elites in Africa see modernization and nation-building as requiring
a unified legal system, often drawing on models of European law
(Okoth-Ogendo, 1979: 165).2 As post colonial societies endeavor to
adopt uniform state law, however, they meet with pockets of in-
2 To this extent, they appear to have accepted the dominant legal ideology
of Western society (see Merry, 1986).
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872 LEGAL PLURALISM
tense resistance from those groups whose law has been preserved
in some fashion (see further, Geertz, 1983: 228).
This review discusses primarily the social science version of
legal pluralism. According to the design of the Fifth Issue, the review
focuses on literature from the past decade, although I have
included earlier work when it is important for my argument. I focused
on materials published in English, although there is a substantial
non-English literature. Central resources in the study of
legal pluralism are the new Journal of Legal Pluralism and Unofficial
Law, created in 1981,3 and several important international
conferences along with the books they have generated.
II. CLASSIC LEGAL PLURALISM AND THE NEW LEGAL
PLURALISM
Research on colonial and post-colonial societies produced a
version of legal pluralism I call "classic legal pluralism." This is
the analysis of the intersections of indigenous and European law.
Beginning in the late 1970s, there has been an interest among sociolegal
scholars in applying the concept of legal pluralism to
noncolonized societies, particularly to the advanced industrial
countries of Europe and the United States. This move produces a
version of legal pluralism I call the "new legal pluralism." A
number of studies explore contemporary legal pluralism in the
United States (e.g., Moore, 1973; Forer, 1979; Merry, 1979; Engel,
1980, 1984, 1987; Nader, 1980; Greenhouse, 1982, Buckle and
Thomas-Buckle, 1982; Macaulay, 1986), Britain (e.g., Henry, 1983;
1985), and the Netherlands (e.g., van den Bergh etal., 1980;
Strijbosch, 1985; van den Bergh et al., 1980). There are also several
historical studies of legal pluralism in these countries (e.g.,
Auerbach, 1983; Arthurs, 1985; Bossy, 1983). Case studies on legal
pluralism presented at a conference on the imposition of law included
the American Indians, Hungarian farm cooperatives, British
trade unions, British game laws, and the American death penalty
along with the more traditional topics of legal pluralism in
New Guinea, Kenya, and Niger (Burman and Harrell-Bond, 1979).
Legal pluralism has expanded from a concept that refers to the relations
between colonized and colonizer to relations between dominant
groups and subordinate groups, such as religious, ethnic, or
cultural minorities, immigrant groups, and unofficial forms of ordering
located in social networks or institutions (Woodman,
3 This journal, under the editorship of John Griffiths in the Netherlands,
incorporates international scholarship on legal pluralism to a far greater extent
than the Law & Society Review. The Journal of Legal Pluralism includes
important theoretical articles, book reviews, and case studies on diverse subjects
such as the role of public letter writers in the development of the legal
profession in Ibadan, Nigeria between 1904 and 1960 (Adewoye, 1986), the coexistence
of indigenous, Islamic, British colonial, and post-colonial Nigerian
law in Northern Nigeria (Salamone, 1983), and the acquisition of indigenous
Hawaiian lands through legal means (Lam, 1985).
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MERRY 873
1987-88: 3-4; Macaulay, 1986). Moore provides a useful summary
of concepts of legal and social pluralism in her overview of ways of
comparing legal systems of the world (1986b: 15-24).
According to the new legal pluralism, plural normative orders
are found in virtually all societies. This is an extraordinarily powerful
move, in that it places at the center of investigation the relationship
between the official legal system and other forms of ordering
that connect with but are in some ways separate from and
dependent on it. The new legal pluralism moves away from questions
about the effect of law on society or even the effect of society
on law toward conceptualizing a more complex and interactive relationship
between official and unofficial forms of ordering. Instead
of mutual influences between two separate entities, this perspective
sees plural forms of ordering as participating in the same
social field. In his remarks at the Bellagio Conference on People's
Law and State Law (see Allott and Woodman, 1985), Francis Snyder
argues that any dualistic distinction, such as that between folk
and state law, is misleading because plural normative orders are
part of the same system in any particular social context and are
usually intertwined in the same social micro-processes (Griffiths,
1985: 17-18). The particulars of the relationship in any social location
are historically derived and unsettled.
The new legal pluralism draws on the rich ethnographic and
theoretical work from classic legal pluralism. Among the significant
contributions of classic legal pluralism there are, I think,
three of particular importance. First is the analysis of the interaction
between normative orders that are fundamentally different in
their underlying conceptual structure. Second is an attention to
the elaboration of customary law as historically derived. Third is
the delineation of the dialectic between normative orders. In classic
legal pluralism, this dialectic takes place in situations in which
different orders are readily identified and the dynamics of resistance
and restructuring by groups experiencing the imposition of a
very different normative order are relatively easy to see. When
Pospisil reports the Kapauku Papuans' response to the introduction
of Dutch law, for example, it is relatively easy to identify the
actors, since Kapauku law and Dutch law are quite distinct. In
this situation there are clearly limits to the penetration of Dutch
law, areas in which the Kapauku have taken Dutch law and made
it their own, and areas in which Dutch law has become part of the
political struggle between different factions, some more attuned to
the colonial order than others (1981).
In societies without colonial pasts, however, the nonstate
forms of normative ordering are more difficult to see. They blend
more readily into the landscape and, aside from some notable exceptions
(such as Ehrlich's concept of "living law," (1913),
Gurvitch's "social law," (1947) and Macaulay's work on private ordering
(1963)) were generally ignored until the mid 1970s. To recThis
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874 LEGAL PLURALISM
ognize legal pluralism at home required rejecting w
calls the "ideology of legal centralism," the notion t
and the system of lawyers, courts, and prisons is the o
ordering (1986a). Indeed, scholars trained in legal po
taught that law and ordering take place in courthous
fices, not in corporate gossip, university regulations an
or neighborhood bars (on this point, see Arthurs, 1985
ably no accident that many of the prominent schola
legal pluralism, such as Richard Abel, David Engel, Marc Galanter,
Peter Fitzpatrick, Sally Falk Moore, Boaventura de Sousa
Santos, and Francis Snyder began their sociolegal research in postcolonial
societies in which legal pluralism was an obvious and unambiguous
fact of life.
In sum, research on legal pluralism began in the study of colonial
societies in which an imperialist nation, equipped with a centralized
and codified legal system, imposed this system on societies
with far different legal systems, often unwritten and lacking formal
structures for judging and punishing. This kind of legal pluralism
is embedded in relations of unequal power. The concept
has been expanded in recent years to describe legal relations in advanced
industrial countries, but here, discussions of legal pluralism
are quite different. They center on a rejection of the law-centeredness
of traditional studies of legal phenomena, arguing that not all
law takes place in the courts (e.g., Nader and Todd, 1978; Arthurs,
1985). The concern is to document other forms of social regulation
that draw on the symbols of the law, to a greater or lesser extent,
but that operate in its shadows, its parking lots, and even down the
street in mediation offices. Thus, in contexts in which the dominance
of a central legal system is unambiguous, this thread of argument
worries about missing what else is going on; the extent to
which other forms of regulation outside law constitute law.
These two contexts make odd companions. Their central adversaries,
the positions against which they are arguing, are quite
different. They come out of different scholarly traditions. The nature
of the relationship between the systems seems quite different.
In the former, there is an unambiguous imposition or dominance
of one system over the other; in the latter, the nature of the
linkage is more fluid and opaque. Yet, on closer inspection, even
dominant colonial legal orders failed to penetrate fully, encountered
pockets of resistance, and were absorbed and co-opted, as
Kidder has shown clearly in the Indian case (1974; 1979). Further,
in industrial societies, despite the apparent autonomy of nonjudicial
spheres, the legal system stands in a relation of superior power
to other systems of regulation as the ultimate source of coercive
power (Abel, 1982; Merry, 1986; Yngvesson, 1985). Thus, there are
ways in which joining these two contexts of legal pluralism enhances
our understanding of the interaction of plural orders rather
than obstructing it.
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MERRY 875
III. FOLK LAW, INDIGENOUS LAW, STATE LAW, LAWYER'S
LAW: DEFINING THE TERMS
There are a wide variety of terms used to discuss the pa
which make up legally plural societies: the systems or norm
orders that make up a legally plural situation. Each is discredited
in various ways because the term carries with it unwanted perjorative
implications. The terminological debate concerning state law
is the easier one: commonly used terms are law, state law, lawyers'
law, official law, and bourgeois legality. Names for nonstate
law form a far greater tangle. The early work in classic legal pluralism
referred to a distinction between law and custom. Diamond,
in an influential article, described the relations dichotomously
(1973: 322-323):
Custom-spontaneous, traditional, personal, commonly
known, corporate, relatively unchanging-is the modality
of primitive society; law is the instrument of civilization, of
political society sanctioned by organized force, presumably
above society at large, and buttressing a new set of social
interests. Law and custom both involve the regulation of
behavior but their characters are entirely distinct; no evolutionary
balance has been struck between developing law
and custom, whether traditional or emergent.
Rejecting the notion that custom is a form of primitive law that
will gradually develop into state law, Diamond argues instead that
the advance of law contradicts and extinguishes custom.
But what is custom? In colonial settings, pre-colonial law recognized
or accepted by the colonial rulers after conquest or takeover
was labeled customary law (e.g., Hooker, 1975). This law was
often predominantly oral rather than written and derived from
sources of authority outside the colonial state (Snyder, 1981b: 49).
Yet, a rich body of recent ethno/historical research in Africa, Indonesia,
and Papua New Guinea argues that the notion of an unchanging
custom or even customary law was a myth of the colonial
era, while customary law itself was a product of the colonial encounter
(Colson, 1976; Benda-Beckmann, 1979; Fitzpatrick, 1980;
Snyder, 1981a, 1981b; Ranger, 1983; Chanock, 1985; Gordon and
Meggitt, 1985; Moore, 1986a; Starr and Collier, 1987, 1989).
Snyder, for example, argues that customary law was not simply
an adapted or transformed version of indigenous law, but a
new form created within the context of the colonial state (1981b).
Through a detailed history of the changing social position of the
rain priest among a group of rice farmers in Senegal, Snyder
shows how customary law was created. Senegalese more familiar
with European languages and customs served as intermediaries, interpreters
of indigenous law to Europeans. The Europeans, in
turn, accepted those versions of customary law which meshed best
with their own ideology of land ownership as well as other legal
relations. Snyder concludes (Ibid.: 74, 76):
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876 LEGAL PLURALISM
Customary law in the Casamance [Senegal], as else
was a concept and a legal form that originated in
historical circumstances, namely the period in the t
mation of pre-capitalist social relations that saw the
idation of the colonial state.... Produced in particular historical
circumstances, the notion of 'customary law' was an
ideology of colonial domination. The concept of 'customary
law' itself manifested an attempt to reinterpret African
legal forms in terms of European legal categories, which
formed part of the ideology of those classes most closely
associated with the colonial state. The designation of African
law as 'customary' because it was oral, though apparently
technical, embodied and masked an essentially political
conclusion that it was subordinate to the colonial law
of European origin.
Snyder urges a full reanalysis of the role law plays in post-colonial
societies from the perspective of dependency theory rather
than from that of modernization theory (1980). Rather than viewing
plural legal orders as barriers to modernization, he suggests
that their creation was a product of the expansion of the European
capitalist order throughout the world over the last 400 years, an
expansion which has gradually incorporated the most remote societies
into a single economic system despite its fractionated political
structures. These traditional forms of law were constructs of the
European expansion and capitalist transformation, as were also the
tribes, villages, chiefs and many other features of apparently traditional
social systems (Wolf, 1982). Ranger argues, for example,
that the vision of a traditional, unchanging African past ruled by
long-established custom was a creation of colonial administrators
of the early twentieth century in an effort to restore some order
after the chaotic years of the nineteenth century (1983: 250-251).
If the nonstate forms of social ordering in legally plural situations
are not customs or customary law, then what can we call
them? A symposium in 1978, The Social Consequences of Imposed
Law, debated using imposed law but abandoned the term as inadequate
since all law is experienced as imposed in some ways, yet all
law is also to some degree accepted rather than simply imposed
(Burman and Harrell-Bond, 1979: 2). Kidder, pointing to the enthusiasm
with which Indians adopted British law, suggested instead
the concept of external law, which takes into account the
"sources of power at different levels of externality" (1979: 296).
He suggests thinking of multiple layers of legal organization at
various levels of externality with struggles between these levels,
rather than just law and custom (Ibid.: 299).
In a later paper, Galanter suggests the terms indigenous ordering
and indigenous law to refer to forms of ordering outside the
official system (1981: 17). But recent work indicates that even
those societies analyzed as if they were untouched by European
culture, and in that sense "indigenous," were vulnerable to outside
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MERRY 877
influences at the time of early ethnographic resea
1985). Indeed, Pospisil, an anthropologist who wor
early contact period between a group of New Guin
the Dutch government and authored a classic text
law, points out that he himself was an important
politics, co-opted by one faction (1979). On a secon
Kapauku, he was surprised to find that the Dutch colonial administrators
were using his book on Kapauku law as the basis for their
determinations of customary law (Ibid.: 132). As anthropologists
examine more carefully the situations in which early ethnographic
accounts were produced they discover ways in which these accounts
were structured by the colonial encounter (Marcus and
Fisher, 1986).
At a 1981 conference on people's law and state law, participants
discussed using the term folk law, but there was concern
over whether the term romanticized folk law or minimized it
(Roberts, 1986). The participants concluded that there is no such
type of law as folk law distinct from state law, but instead a con
tinuum of differentiation and organization of the generation and
application of norms, a conception suggested by Galanter (Allott
and Woodman, 1985).
Within the new legal pluralism, Macaulay proposes the concept
of "private government," which he defines as that governing
done by groups not part of federal and state constitutions but
which may mimic symbols and structures of the public legal system
(1986). He advocates a "private government perspective,"
which recognizes private associations that affect governing and
also treats distinctions between public and private as problematic
(1983: 2). He envisions a private government landscape as follows:
". . . While it may be necessary to draw a sharp line between public
and private government even to think about law, actually there is
no such line but situations of interpenetration, overlapping jurisdictions,
and opportunities for harmony and conflict (Ibid.: 1)."
Henry suggests the term "private justice" to refer to nonstate systems
that "include practices of such institutions as the disciplinary
bodies, boards, and councils of industrial and commercial organizations,
professional and trade associations and unions, down to the
peer sanctioning of relatively amorphous voluntary associations
such as local self-help and mutual aid groups (1985: 89)."
Private justice does not exist in isolation but interrelates with
the more formalized state order in a semiautonomous way (Henry,
1985: 89). As with Macaulay's private governments, private justice
institutions can be formally constituted with written rules and procedures
or informally constituted, generated spontaneously by
members who share only tacit assumptions and who do not necessarily
recognize that they are part of a system of normative ordering.
Private government or private justice often replicates aspects
of the legal order, such as security forces and tribunals, and
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878 LEGAL PLURALISM
mimics its symbols with similar police uniforms, light
systems of judgment. However, there are also occasions when it
takes an oppositional form, as it does with the law of cooperatives
in a capitalist society (Henry, 1985; 1987).
The most enduring, generalizable, and widely-used conception
of plural legal orders is Moore's notion of the semiautonomous social
field, a concept developed to describe multiple systems of ordering
in complex societies (1973). The semiautonomous social
field is one that (Ibid.: 720):
can generate rules and customs and symbols internally, but
that ... is also vulnerable to rules and decisions and other
forces emanating from the larger world by which it is surrounded.
The semi-autonomous social field has rule-making
capacities, and the means to induce or coerce compliance;
but it is simultaneously set in a larger social matrix
which can, and does, affect and invade it, sometimes at the
invitation of persons inside it, sometimes at its own in-
stance.
The advantages of this concept are that the semiautonomous social
field is not attached to a single social group, that makes no cla
about the nature of the orders themselves or their origin (whethe
traditional or imposed), and that it draws no definitive conclusion
about the nature and direction of influence between the normative
orders. The outside legal system penetrates the field but does not
dominate it; there is room for resistance and autonomy.
Galanter, building on this model, argues that indigenous ordering
persists not in bounded groups so much as in more open social
networks that are regulated largely by reciprocity and shared
but tacit understandings (1981: 22). Societies contain many partially
self-regulating sectors organized along geographical, ethnic,
or familial lines, often in fragmentary and overlapping social networks
(Ibid.: 19-20). Galanter states (Ibid.: 22):
If we have lost the experience of an all-encompassing inclusive
community, it is not to a world of arms-length dealings
with strangers, but in large measure to a world of
loosely joined and partly overlapping partial or fragmentary
communities. In this sense, our exposure to indigenous
law has increased at the same time that official regulation
has multiplied.
Macaulay's conception of private government is very similar: he
envisions ordering through open social networks as well as within
more organized and established institutional frameworks (1986).
Why is it so difficult to find a word for nonstate law? It is
clearly difficult to define and circumscribe these forms of ordering.
Where do we stop speaking of law and find ourselves simply
describing social life? Is it useful to call all these forms of ordering
law? In writing about legal pluralism, I find that once legal
centralism has been vanquished, calling all forms of ordering that
are not state law by the term law confounds the analysis. The
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MERRY 879
literature in this field has not yet clearly demarcat
between normative orders that can and cannot be called law. I
think one of the difficulties lies in the tremendous variation in
normative orders and the diversity of particular situations. The
move to include noncolonized societies under the framework of
legal pluralism adds to the complexity. However, there is general
agreement that pluralism does not describe a type of society but is
a condition found to a greater or lesser extent in most societies,
with continuous variation between those that are more and those
less plural (Galanter, 1981; Griffiths, 1986a).
Defining the orders which make up legal pluralism raises
other issues as well. Does it make a difference that these plural
legal orders vary greatly in power, in coercive potential, in symbolic
strength, in attachment to class groupings? Are state and
nonstate forms of ordering similar, or are there ways in which the
state-law system is fundamentally different from all other forms
of ordering? I think it is essential to see state law as fundamentally
different in that it exercises the coercive power of the state
and monopolizes the symbolic power associated with state authority.
But, in many ways, it ideologically shapes other normative orders
as well as provides an inescapable framework for their prac-
tice.
IV. RELATIONS BETWEEN NORMATIVE ORDERS:
EXPLORING THE INTERACTIONS
Legal pluralism not only posits the existence of multipl
spheres, but develops hypotheses concerning the relationships between
them. The existence of legal pluralism itself is of less interest
than the dynamics of change and transformation. Historically,
there has been a shift in the way the interaction between legal orders,
particularly between state law and nonstate law, has been described.
Early research in classic legal pluralism saw normative
orders as parallel but autonomous. During the 1960s and early
1970s, several studies demonstrated the power of state law to
reshape the social order, suggesting the dominance of this form of
law over other normative orders (e.g., Massell, 1968; Diamond,
1973; Burman and Harrell-Bond, 1979). Law appeared to be a potent
tool for modernization in Third World countries (see Gardner,
1980; Lynch, 1983) and for creating social justice in the First World
during this period.
But, it has not always worked that way, as law and development
scholars discovered and as American social reformers found
(Trubek and Galanter, 1974). In the 1970s, a more cautious and
limited view of law's potential to reshape other social orders
emerged. Some studies showed limits to the capacity of law to
transform social life. The comparative examination of imposed
law showed that sometimes it had powerful consequences for
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880 LEGAL PLURALISM
change but that at other times the consequences were
or negligible (Burman and Harrell-Bond, 1979). In contrast to
Massell's analysis of the revolutionary impact of new laws on the
status of women in the Islamic societies of Soviet Central Asia
(1968), for example, Starr and Pool showed that the drastic law re
forms introduced into Turkish society in 1926 that swept away Is
lamic Ottoman law in favor of the Swiss civil code produced relatively
little change in the normative ordering of local villages
(1974: 534). The vast majority of the Turkish population continued
to follow customs incompatible with the new codes (Ibid.). Instead
of revolutionary transformation, Starr and Pool document gradual,
incremental change as, for example, women began to use the
courts more frequently for family problems.
The creation of customary law, to give another example, was
an ongoing, collaborative process in which power was clearly unequal,
but subordinate groups were hardly passive or powerless.
For example, Adewoye describes the development of public letter
writers in Ibadan, Nigeria, between 1904 and 1960 (1986). These
Africans drafted and produced legal documents in the absence of
trained lawyers, shaping the forms of sale and land ownership contracts.
Moore's model of the semiautonomous social field was in
part an effort to explain why new laws or other attempts to direct
change did not always produce the anticipated results or brought
unplanned or unexpected consequences (1973: 723):
This is partly because new laws are thrust upon going social
arrangements in which there are complexes of binding
obligations already in existence. Legislation is often passed
with the intention of altering the going social arrangements
in specified ways. The social arrangements are
often effectively stronger than the new laws.
Moore's careful historical study of customary law among the
Chagga of Tanzania documents this process more fully (1986a).
Here she defines customary law as a cultural construct with political
implications, a set of ideas embedded in relationships that are
historically shifting (Ibid.: xv). Franz von Benda-Beckmann points
out that the particular areas of resistance or acquiescence to imposed
colonial law are complex and historically situated, depending
to some extent on the processes of imposition themselves,
which are highly variable (1981).
Research in the 1980s has increasingly emphasized the dialectic,
mutually constitutive relation between state law and other normative
orders. I think this reflects a new awareness of the interconnectedness
of social orders, of our vulnerability to structures of
domination far outside our immediate worlds, and of the ways implicit
and unrecognized systems of control are embedded in our
day-to-day social lives. Moreover, analysis of this dialectic is enriched
by recent interpretations of law as a symbolic and ideological
system (c.f., Law & Society Review Special Issue on Law and
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MERRY 881
Ideology, 1988). Research in the 1980s emphasizes th
law penetrates and restructures other normative or
symbols and through direct coercion and, at the sam
way nonstate normative orders resist and circumvent penetration
or even capture and use the symbolic capital of state law. In a final
turn, some research explores the way nonstate normative orders
constitute state law. Beyond well-known research on phenomena
such as plea bargaining and courtroom workgroups,
however, this study is in its infancy.
I will begin by describing research that focuses on the ways
state law shapes other normative orders. Auerbach's study of the
history of nonjudicial forms of dispute resolution in the United
States demonstrates how state law gradually infiltrates and
restructures alternatives so that they come to resemble state law
(1983; see also Arthurs, 1985). This and other studies of the progressive
reconstitution of alternatives as legalistic forums illuminate
the expansion of state law into other normative orders over
time (Nader, 1984; Harrington, 1985; Arthurs, 1985). But,
subordinate groups may also choose to draw on the symbols and
meanings of the state legal system. Santos's well-known study of
law in the favelas of Brazil describes how residents of an illegal
squatter settlement create their own legality using the forms and
symbols of state law, the "law of the asphalt," as they call it (1977).
Here, legal orders are attached to classes. Legal pluralism describes
the relations between a dominant class and an oppressed
urban class, relations that reflect the class hierarchy of Brazilian
society, its structure of domination and unequal exchange. Squatters
pursue a strategy of implicit confrontation at the same time as
they adapt in order to survive (1977).
In another context, Westermark documents the practices of
new village courts in Papua New Guinea, created in 1973 as informal,
conciliatory alternatives to the state courts (1986). But the
courts he studied replicated the state courts in architecture and
furniture, using tables, chairs, the national flag, notes, and stonelined
walkways to an enclosed building (1986). Equipped with
handbooks and badges, the magistrates pressed for uniforms and
handcuffs. These village courts dispense what they call government
law.
In an American study, John Brigham argues that legal discourse
constitutes the discourse and practices of some American
social movements (1987). Using examples from the gay rights
movement, the anti-pornography movement, and the alternative
dispute resolution movement, Brigham shows how references to
rights or to the failures of law enter into and thus constitute movement
discourse and even the strategies and tactics of the movements.
Other studies have begun to explore the widespread legal
consciousness of American society (Scheingold, 1974; Merry, 1986;
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882 LEGAL PLURALISM
Macaulay, 1987) but there has been relatively little inv
how this consciousness shapes other normative order
Symbolic appropriation works the other way around as well:
state law may borrow the symbols of other normative orders.
Government reformers sometimes promote new state judicial institutions
with traditional symbolic trappings, claiming to reinstitute
traditional law. The Philippine katarungang pambarangay,
(neighborhood justice) or Indian nyaya panchayats (justice village
councils) (Silliman, 1985; Meschievitz and Galanter, 1982; Hayden,
1984) illustrate this practice. The Philippine system is called
neighborhood justice but is administered by state officials called
neighborhood captains (Silliman, 1985). Many have argued that
American neighborhood justice is another example of state law
masquerading under the symbolic trappings of nonstate normative
orders (Santos, 1982; Abel, 1982; Harrington, 1985; Harrington and
Merry, 1988). New state judicial institutions clothed in revolutionary
symbols have been created in the service of social transformation,
as in Allende's Chile (Spence, 1978) and Castro's Cuba (Salas,
1983).
Studies of the micro-level processes of legal action, disputing,
and case processing describe the dynamics of the symbolic radiation
and imposition of state law, its appropriation within other
normative orders, and forms of resistance to its penetration. The
rich ethnographic studies of local dispute processes reported in Nader
and Todd (1978) provide numerous examples of individuals
pursuing dispute strategies in legally plural arenas (see, e.g., Ruffini,
1978). Even when state law is not used, it constitutes bargaining
and regulatory endowments, to use Galanter's terms (1981). In
these situations, the contours of local disputing are inextricably
connected with local political struggles between those whose authority
claims rest on kinship or religion and those whose claims
rest on knowledge of the state, education, or connections with the
government. Moore's description of a dispute among the Chagga
illustrates this dynamic, pointing to the linkage between local
political competition for power and knowledge of and access to village
and state legal systems (1977). Based on her analysis of disputing
in a legally plural arena in Indonesia, Keebet von BendaBeckmann
proposes a model of forum shopping and social change
that provides a way of understanding how local processes of disputing
reshape legally plural situations (1981). Disputants shop for
forums for their problems and forums compete for disputes, which
they use for their own local political ends (Ibid.: 117). There are
constraints on disputants, however. For example, state courts refuse
to hear claims by women for rice plots since only the official
representative of the lineage is entitled to sue, thus preventing women
from appealing to the state courts to escape the control of the
lineage head over their land (Ibid.: 143).
Abel (1979a) and Merry (1982) also develop models of disputThis
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MERRY 883
ing and legal change which argue that the cumulative e
gant choice of forum affects dispute institutions at
as dispute institutions are themselves changing alon
opments in the political economy. Starr's analysis o
strategies during a period of capitalist transformation in Turkey
carefully analyzes this process as well (1974; see also Abel, 1979b).
Peter just explores the manipulation of evidence as a strategy for
providing justice while conforming to law (1986).
Another new area of research examines how state law both
constitutes and is constituted by the normative orders of which it
is composed. Fitzpatrick's concept of "integral plurality" focuse
on the interaction between normative orders, positing that state
law is integrally constituted in relation to a plurality of social
forms (1984). His work draws on Foucault's analysis of the emergence
of modern law (Fitzpatrick 1983a: 176). Fitzpatrick argues
that we need to look at law not simply as domination but also as
constitutive of social life. Both state law and semiautonomous social
fields are constituted in significant part by their interrelations
with one another: the family and its legal order are shaped by the
state, but the state in turn is shaped by the family and its legal order
because each is a part of the other (Ibid.: 159). Here, Fitzpatrick
makes the turn from seeing the semiautonomous social field
as constituted by state law to seeing state law shaped by its constituent
normative orders and vice versa.
In Fitzpatrick's theory, state law takes identity from and derives
support from other social forms, but these forms both support
and oppose state law. Bourgeois legality, for example, depends
on social forms such as the prison and capitalist labor
relations that both support and undermine it. The prison is a condition
of the existence of bourgeois legality, since prison serves
both as the ultimate enforcer of law and as an example of a pervasive
disciplinary power that typifies modern society, yet it cannot
itself incorporate bourgeois legality in its functioning. It coerces
outside this structure while leaving bourgeois free to be equal and
universal (1984: 116).
Integral relations of mutual support between law and other
social forms tend toward convergence as elements of law are elements
of the other social forms and vice versa. For example, science
is incorporated into elements of law, and law supports and reinforces
science: the two take identity from each other in
positively supportive ways (Fitzpatrick, 1984). Similarly, custom,
when penetrated by state law, changes its nature fundamentally
and becomes part of state law. In his words, "Custom supports law
but law transforms the elements of custom that it appropriates
into its own image and likeness. Law, in turn, supports other social
forms but becomes, in the process, part of the other forms"
(1984: 9). Not a unitary phenomenon, law is constituted by a plurality
of social forms. Since law is constituted in relations of oppoThis
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884 LEGAL PLURALISM
sition and support to other social forms, however, the
tween law and other social forms that cannot be b
depends on these opposed social forms. Integral plur
of a dialectic of power and counter power. Fitzpatr
that "law is the unsettled resultant of relations with a
social forms and in this law's identity is constantly an
subject to challenge and change" (Ibid.: 138).
Henry's work on law in collectives and cooperatives in Britain
further develops this model of integral plurality (1983; 1985; 1987;
see also Nelken, 1986). Henry argues that the relations between
state law and other normative orders now appear very complicated,
requiring attention to history, human agency, local contexts,
and culture (1985: 315). Conflicting normative orders, such as
those of the cooperative and the capitalist state, may challenge and
oppose each other, both by outright rejection (when the state prohibits
conflicting normative orders, for example), or by accepting
and recognizing the autonomy of a separate normative order
within that sphere. Thus, the law refuses to intervene in the cooperative
because some matters are seen as the private concern of
the co-op (Ibid.: 314). The members of the cooperative, on the
other hand, can reject and to some extent undermine capitalist legality.
Henry proposes a dialectical model, in which "[a]lternative
institutions and their associated normative orders do not work
transformations on capitalist structures and rule systems but instead
interact with them in a dialectical way such that both the alternative
system and the capitalist order are vulnerable to incremental
reformulations" (Ibid.: 324). Drawing on Giddens' analysis
of structure and action according to which action shapes structure
and structures constrain and enable actions, an integrated theory
that provides some space for individual actions to "make a difference,"
even for the powerless, Henry adds the dimension of individual
action to Fitzpatrick's model of integral plurality. Individuals
within communitarian organizations, he argues, are likely to
interject communitarian elements into capitalist society as long as
they are not totally marginal or separated from that society. Thus,
the impact of communitarian organizations within capitalist society
may be greater than that of marginal collectives (Ibid.).
Of particular interest, yet also particularly unstudied, is the
way constituent normative orders shape state law. Yet, this describes
how groups in power attempt to control state law and
shape it to their ends at the same time as they are limited by the
plural normative orders of which they are a part. Careful empirical
work such as Henry's study of workplace discipline (1983) or
Silbey's and Bittner's study of consumer protection reveal the importance
of constituent normative orders within regulatory activities
(1980-81, 1982). Yngvesson's ethnographic studies on locallevel
legal processes in American courts demonstrate how court
clerks constitute the legality of the lower courts through their unThis
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MERRY 885
derstanding of community norms of justice (1985,
Felstiner, listening to the way lawyers talk to client
struction of a vision of legality for the client which
the local normative order of lawyers (1986).
David Sugarman develops the mutually constitutive understanding
of state law and nonstate normative orders in his edited
volume, Legality, Ideology, and the State (1983). State law is itself
plural: it contains procedures for establishing facts, general substantive
rules that guide citizen action, enforcement of judgments,
provisions for physical punishment, modes of appeal, insurance
against loss, ideological and symbolic dimensions, and the ability to
provide a degree of private ordering through facilitative laws
(1983: 230-231). Law and legal institutions mean different things
to different people. There are tensions between local and central
regulation, indigenous and state conceptions of legality, discretionary
practices and enforcement, and arbitration and other extralegal
mechanisms for dispute resolution. In eighteenth and nineteenth
century Britain, there were struggles between local courts,
special courts, and the formal state system of courts. Arthurs
demonstrates these struggles in British administrative law (1985)
and Provine describes analogous debates over local lay judges in
the United States (1986).
Sugarman explores the plurality of law through his discussion
of facilitative law, law that functions not by imposing obligations
but by providing individuals with facilities for realizing their
wishes through conferring legal powers on them, such as the powers
to construct marriages, wills, contracts, companies, trusts, and
so forth (1983). This law permits private law-making and affords
the opportunity to bypass the legal obligations of the state.
Facilitative laws simultaneously define and constrain permissible
conduct and enable individuals to expand or contract their autonomy,
thus promoting, qualifying, or subverting state policy
(Sugarman, 1983: 217).
In his review of this book, Freeman sees the move in British
critical legal scholarship toward seeing law as pluralistic-as having
many sides and many determinations-as analogous to the
American critical legal studies' move to deconstruction (1986: 840).
Freeman claims that, in an effort to avoid simple reductionist
views of law as the product of the ruling class, British critical legal
studies scholars argue that law is pluralistic just as Americans argue
that it is indeterminant and incoherent. Yet, Freeman concludes,
pluralism, just as deconstruction, ultimately ends in immobilization,
since if everything is complex and variable, just as if
everything is a matter of interpretation, how can one say any-
thing?
The turn toward a dialectic analysis of the relations between
plural legal orders, particularly between state law and other normative
orders, comes primarily from work within the new legal
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886 LEGAL PLURALISM
pluralism: that is, from those who have used the m
pluralism to understand legality in the First World.
lectic analysis is equally fruitful for a reanalysis of
pluralism materials, as the example of the reanalysis
law demonstrates. In none of these analyses, howev
implication that the power relations between plural
are equal: the theme instead is the penetration and
state law and its subversion at the margins.
V. PLURAL LEGALITIES AND LOCAL KNOWLEDGE
Another aspect of legal pluralism is the study of law as a s
tem of meanings, a cultural code for interpreting the world.
Geertz, a preeminent spokesman for this perspective, has developed
an interpretive view of legal pluralism, one richly evocative
of cultural diversity (1983). Law is understood as a system of symbols,
of meanings. Unlike the research tradition discussed above,
there is little attention here to relations of power or to the political
economy of legal pluralism, but there is a substantial interest
in history and context.
In Local Knowledge, Geertz urges a focus on structures of
meaning, especially on the symbols and systems of symbols
through whose agency such structures are formed, communicated,
and imposed, in the comparative analysis of law as in the comparative
analysis of myth, ritual, ideology, art, or classification systems
(1983: 182). In his words, ..... "'law' here, there, or anywhere, is
part of a distinctive manner of imagining the real (Ibid.: 184)." He
conceives of law as a species of social imagination. Starting with
basic words or concepts, he compares the "legal sensibilities" of
three cultures, using these words to orient the reader to different
senses of law. This is a hermeneutic project; the words are keys to
understanding the social institutions and cultural formulations
that surround them and give them meaning (1983: 187). For example,
in the Islamic world he discusses the concept haqq which
means reality, truth, or validity, and in various permutations and
combinations, God, fact, actuality, right, duty, claim, obligation,
fair, valid, just, or proper (1983: 188). In Islamic legal sensibility,
to determine the empirical situation is to determine the jural principle.
Facts, in other words, are normative; there is no fact/law dichotomy.
Facts are estimates of character assumed by background
and demeanor as much as they are weightings of notarized documents
presented (Rosen, 1980-81: 231; see also Messick, 1986).4 Because
the law itself is certain and comprehensive, although what is
just and unjust is not, it is in the recounting of incident and situa-
4 The qadi or judge takes into account the relationship between the parties,
their social background, each person's location in the system of ordering,
their kin connections, residence, and occupation as evidence as to the likely
way that the person acted in any situation (Rosen, 1980-81: 229). The standard
of conduct to which a person is held depends on who he or she is.
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MERRY 887
tion that value balancing comes in. To achieve the p
ing of a situation, the court needs morally upright
testify about cases. In classical times these people w
the qadi and appeared before the court over and over (Geertz,
1983: 191-192). Geertz argues that even in secular courts, one can
see the lingering influence of the notion of the virtuous witness
speaking moral truth in the persistence of certified truth bringers
and other examples of normative witnessing in these courts (Ibid.:
193).5 A hermeneutic approach applied to legally plural situations
describes sets of meanings joined together in a "polyglot discourse"
(Ibid.: 226). These views do not cohere into a systematic position,
but bounce off one another. This means viewing the situation as
one of several, incommensurate local expressions of legal sensibilities.
The diversity and mingling of legal sensibilities is not likely
to end, in Geertz's opinion, but may increase; it is something that
Indonesians and other Third World peoples live with as they try to
construct principled lives, as do many First World peoples as well.
In a recent paper that develops these themes, Santos asserts
that legal pluralism is the key concept in a postmodern view of law
(1987: 297). Using the metaphor of the map to discuss law, he suggests
that law is a system of signs that represents/distorts reality
through the mechanisms of scale, projection, and symbolization.
As do maps, different legal orders have different scales, different
forms of projection and centering, different systems of symbolization.
Thus, another way of discussing legal pluralism is to talk
about the different symbolic systems inscribed in each normative
order.
Santos delineates two ideal-typical sign systems by means of
which law symbolizes reality. The first he labels the Homeric
style, in which (to shorten his description) everyday reality is described
in abstract and formal terms through conventional cognitive
and referential signs. A second, the biblical style, presupposes
an image-based legality in which (again condensed) interactions
are inscribed in multilayered contexts and described in figurative
and informal terms through iconic, emotive, and expressive signs
(1987: 295). These styles are perpetually in tension, with variations
in dominance during particular historical periods. He suggests that
the modern state legal order is predominantly Homeric. In Cape
Verde, the tension between these two types of legal symbolization
appears in the system of popular justice, which fuses both customary
law and state law (Ibid.: 296). The tension crops up in the way
judges settle disputes: some judges adopt one, some the other,
some shift from one to another depending on the case and their familiarity
with it. He concludes that the legal pluralism he is
5 Hayden provides an analysis of forms of speaking and consideration of
facts in Indian caste panchayts, government courts, and United States courts
(1984; 1987).
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888 LEGAL PLURALISM
describing is not the legal pluralism of traditional le
ogy (what I have called classic legal pluralism) but (I
rather the conception of different legal spaces su
posed, interpenetrated, and mixed in our minds as m
in our actions.... Our legal life is constituted by an
section of different legal orders, that is, by inter
Interlegality is the phenomenological counterpart
pluralism and that is why it is the second key conce
postmodern conception of law.
Bentley develops the culturally constructive role of
analysis of disputing among the Maranao in the Phil
He argues that disputing is an expression of compet
social reality, an arena for constructing and expressi
visions of the world. In the society he studied, which combines
custom (adat), Islamic law, and Philippine civil and criminal law,
the manipulation of the different legal systems is part of the effort
to construct an interpretation of truth in the world in a way that
others will accept. He argues that the complexity and fluidity of
the arenas of contest appears to enhance the range of manipulation
and contest. In the same vein, O'Connor makes the intriguing
argument that law is an indigenous social theory, using Thai ethnography
(1980).
Foucault's conceptions of the forms of power and discipline of
modern society provide yet another take on legal pluralism (1979),
a perspective that is being developed by Fitzpatrick (1983b). If the
nature of law that has emerged in the wake of capitalism is fundamentally
different from that of pre-capitalist societies in what
Foucault refers to as its "disciplinary technologies"-productive
forms of power such as the timetable, the cell, and the panopticon-the
encounter between these forms of power and discipline
and those of noncapitalist societies takes on new meaning. Power,
in Foucault's theory, is not simply based on prohibition but also on
the positive formation of norms and shaping of individuals to fit
these norms (Fitzpatrick, 1983b: 50). Law gives shape to institutions
that supervise rather than contain; it creates new technologies
of discipline that stretch from the prison to the factory to the
military to the school (Fitzpatrick, 1983b; Foucault, 1979).
In an intriguing illustration of the meaning of these shifts in
forms of power and discipline, Pospisil describes the dismay of the
Kapauku Papuans at the use of jail as a punishment, one that to
them seems extraordinarily severe since it separates the individual
from the essential cooperation of soul and body, the linkage between
one's actions and one's own free decisions (1979: 141). In
their words, in jail, "The man's vital substance deteriorates and
the man dies" (Ibid.: 142). Indeed, the Dutch colonial administrators
found that Kapauku tended to pine and die if imprisoned long,
despite the administrators' conviction that prison had a positive,
civilizing effect.
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MERRY 889
VI. CONCLUSIONS AND DIRECTIONS FOR FUTURE
RESEARCH
What are the implications of focusing on legal pluralism f
future sociolegal research? My review of this literature suggests
least five ways in which viewing sociolegal phenomena as plur
expands the research framework. First, a concern with legal p
ralism moves away from the ideology of legal centralism-the
disposition to think of all legal ordering as rooted in state law
and suggests attention to other forms of ordering and their inte
tion with state law. It highlights competing, contesting, and som
times contradictory orders outside state law and their mutually
constitutive relations to state law.
Second, this perspective requires a shift away from an essentialist
definition of law to an historical understanding since any situation
of legal pluralism develops over time through the dialectic
between legal systems, each of which both constitutes and reconstitutes
the other in some way. Defining the essence of law or custom
is less valuable than situating these concepts in particular sets
of relations between particular legal orders in particular historical
contexts. Plural normative orders, once created, can persist with
tenacity justifying themselves by appeals to tradition, or they can
be radically reformed in the contest between opposing orders, a
process exemplified by the creation of customary law in colonial
societies.6 Or they may change incrementally through small additions,
subtractions, and reinterpretations. The papers from a recent
conference, Ethnohistorical Models for the Evolution of Law
within Specific Societies, provide rich descriptions of these historical
processes of change and transformation in legally plural societies
(Starr and Collier, 1988).7
Third, viewing situations as legally plural leads to an examination
of the cultural or ideological nature of law and systems of normative
ordering. Rather than focusing on the particular rules applied
in situations of dispute, this perspective examines the ways
social groups conceive of ordering, of social relationships, and of
ways of determining truth and justice. Law is not simply a set of
rules exercising coercive power, but a system of thought by which
certain forms of relations come to seem natural and taken for
granted, modes of thought that are inscribed in institutions that
exercise some coercion in support of their categories and theories
of explanation.
Fourth, examining the plurality of legal situations facilitates
6 Starr and Collier describe this process in terms of "historical struggles
between native elites and their colonial and postcolonial rulers" (1987: 368).
7 As the twenty participants in this 1985 conference concluded, societies
may be characterized as having multiple legal systems that are not autonomous
but negotiated in relation to an encompassing political structure and particular
assymetrical relations of power (Starr and Collier, 1987: 371; see further,
Starr and Collier, 1989).
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890 LEGAL PLURALISM
the move away from an exclusive focus on situations o
an analysis of ordering in nondispute situations (see
lier, 1973; Engel, 1980). Holleman suggests the study of "troubleless
cases" rather than situations of trouble, arguing that disputes
are exceptional events and therefore misleading guides to the nature
of ordering (1986).8 The study of facilitative law and historical
studies of legal change similarly move away from an exclusive
focus on dispute.9
Fifth, the dialectical analysis of relations among normative orders
provides a framework for understanding the dynamics of the
imposition of law and of resistance to law, for examining the interactive
relationship between dominant and subordinate groups or
classes. It offers a way of thinking about the possibilities of domination
through law and of the limits to this domination, pointing
to areas in which individuals can and do resist. This is a difficult
area for research. On the one hand, attention to law in its ideological
role points to its power to construct modes of thinking and implicit
understandings as a central aspect of its power. On the other
hand, attention to plural orders examines limits to the ideological
power of state law: areas where it does not penetrate and alternative
forms of ordering persist, groups that incorporate the symbols
of state law but oppose it, perhaps becoming expert in its intricacies
and forms of power as in colonial India, and situations in
which other forms of ordering are so embedded in the administration
of law that they subvert its actual implementation. Here, of
course, we are on the familiar terrain of plea bargaining, courtroom
workgroups and agency capture, but instead of explaining
why the law on the books and the law in action differ according to
gap theory, we could understand this well-documented characteristic
of legal life as one of plural legal orders within the courthouse,
the police station, or the regulatory agency, some of which are organized
around standards of community justice, others around
rule-of-law standards, and others around the cultural predispositions
of particular groups in power. Indeed, state law is itself plural.
Despite efforts to root out pluralism such as attacks on "rough
justice," on lay justices of the peace (Provine, 1986), and on police
discretion, new plural orderings continually spring up. These plural
orderings constitute state law.
8 The Dutch tradition of the anthropology of law, which is premised on
assumptions of legal pluralism, indicates the potential of an approach to sociolegal
phenomena that looks at systems of ordering within arenas of social life
such as the family, land tenure, inheritance, commercial transactions, and so
forth, examining day-to-day peace rather than rare moments of trouble (Griffiths,
1986b). Griffiths suggests that perhaps the Anglo-American common law
tradition leads British and American anthropologists to focus on moments of
dispute rather than on systems of ordering embedded in the wider domain of
uncontested social life (1986b; see also Ietswaart, 1986).
9 As Starr and Collier point out, the dispute paradigm has become too
normative and positivistic for many researchers, leading to a turn to historical
research as a way of considering legal change (1987: 367).
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MERRY 891
However, for some problems the concept has li
is in the analysis of change within a single social fiel
is in the attention to the specific characteristics of p
locations. A legal pluralist analysis tends to emph
that occur through interactions between social fields
taking place within a social field. It is likely to miss
ticular social field is gradually reshaped by a varie
and political forces both within and outside it. For
their study of the impact of European missionaries on South Africa
during the colonial period, Comaroff and Comaroff argue that
the missionaries introduced new concepts of time, space, work,
personhood, and so forth, at a variety of particular locations
throughout the country over a period of years, gradually shifting
the consciousness of the Africans they encountered and converted
and paving the way for the colonial conquest of these people despite
the missionaries' efforts to oppose it (1986).10 Although this
historical shift in consciousness could be described in terms of
legal pluralism-the interaction between the African and the missionary
legal orders-the concept tends not to highlight the intricate
relations between ways of thinking and knowing within a social
field, the ways they change over time, and the ways symbols
seep into and out of legal systems in large cities, small towns, and
provincial places.
Moreover, the concept of legal pluralism can press too quickly
toward analyses of systems to the neglect of the variation in particular
local places. It is difficult to understand the particularity of
small situations and the interaction of large systems at the same
time. Thinking of legal pluralism seems likely to get us out of the
courtroom and the lawyers's office, but once outside, legal pluralist
analyses could lead away from detailed examinations of particular
local places. To examine the ever-changing conceptions of the normal
and the cultural and the constant struggle of interpretation of
the symbols and forms of legality in small places and large legal
systems at the same time is, at the least, challenging.
In sum, the new legal pluralism has opened up questions of dialectic
and resistance that build on the sophisticated theoretical
traditions and rich ethnography of classic legal pluralism. There is
much in these traditions that could serve as the basis for exciting
new directions in law and society research. However, the concept
requires refinement as we work to develop it, including attention
to the specificity of each situation, to the variations in minute so-
10 By introducing new symbols such as the moral worth of work, wealth,
belief in free choice, liberal democracy, impersonal forms of regulation such as
the clock, and conceptions of political authority as distinct from religious authority
and power, the missionaries gradually transformed the taken-forgranted
world of the Tswana people and, despite their explicit opposition to
taking political power or fostering imperialist expansion, facilitated the political
absorption of the Tswana into the colonial state (Comaroff and Comaroff,
1986; see also Comaroff, 1985).
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892 LEGAL PLURALISM
cial processes, and to the complex texture of ideolog
formed within particular historical situations. This is no small
project.
SALLY ENGLE MERRY is Associate Professor of Anthropology
at Wellesley College, Wellesley, Mass. She is the author of a monograph
on urban crime, Urban Danger: Life in a Neighborhood of
Strangers, and numerous articles on legal ideology and legal consciousness,
mediation in American society and in cross-cultural
perspective, and urban social order. She is currently completing
a manuscript describing the people who bring interpersonal
problems to court and the nature of their legal consciousness.
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