Law’s Pluralism: Getting to the Heart of the Rule of Law

Abstract

This article makes a theoretical argument for reimagining “the rule of law” in light of “legal pluralism.” Building on the work of Desmond Manderson and Roderick Macdonald in particular, the article considers what it means for law’s pluralism – the differences that animate the everyday life of law – to be the very pulse of its rule. In doing so, the article seeks to open the frame that has been placed around the rule of law in two ways. On one side: to see beyond the law that is made intelligible through institutionalized modes of expression to the law that is made sensible through the richly expressive media of human culture (thus opening the frame around the “law” that is seen to rule). And on the other side: to see beyond law as a mode of governance to law in the everyday lives of subjects (thus opening the frame around how this law is seen to “rule”). The result is a reimagination of the rule of law as a broadly socio-cultural phenomenon rather than a narrowly legal-institutional arrangement. The article proceeds in two steps, beginning with law’s pluralism before turning to law’s rule.

The Mythology of International Rule-of-Law Promotion

“…And yet, despite this attempt to render the problem mute by turning to an oblivious and obliviating "common sense" (common, and yet informed by Hart's very particular concept of law), the question of course remains: how does this rule of law ground the Bank's world development project if its grounds are so evidently uncertain? (see also Chalmers 2017). The answer, we will find, is in The Mythology of Modern Law: "law as a unified entity can only be reconciled with its contradictory existences if we see it as myth" (Fitzpatrick 1992, 1).…”

“…When Mythology was published in 1992, its major contribution was an approach to "law as myth" that showed the constitutive relation between racialized imperialism and 2. For example, see Chalmers and Pahuja (forthcoming); Chalmers (2018); Brown (2017); Farrall and Charlesworth (2016); Gowder (2016); Cheesman (2015); Grenfell (2013); Massoud (2013); Humphreys (2012); Kleinfeld (2012); Linnan (2012); Rajah (2012); Zürn, Nollkaemper and Peerenboom (2012); Bergling, Ederlöf, and Taylor (2009); Bowden, Charlesworth and Farrall (2009); Hurwitz and Huang (2008); Palombella and Walker (2008); Trebilcock and Daniels (2008); Carothers (2006); Stromseth, Wippman, and Brooks (2006); Trubek and Santos (2006); Krygier, Czarnota, and Sadurski (2005); Jensen and Heller (2003); Hatchard and Perry- Kessaris (2003); and more generally the Hague Journal on the Rule of Law.…”

Terra Nullius? Temporal Legal Pluralism in an Australian Colony

“…This approach is informed by jurisprudence in the fields of sociology of law and law and the humanities. In particular, the analysis draws on, and seeks to extend, the ‘critical legal pluralism’ developed by Roderick Macdonald (see Kleinhans and Macdonald, 1997; Macdonald, 2011; see also Anker, 2014; Chalmers, 2017; Davies, 2005, 2017). While there are many different understandings of legal pluralism, traditional social-scientific versions tend to focus on the coexistence of a plurality of legal orders.…”

“…the coexistence of Indigenous and non-Indigenous legal orders in Australia). Either way, for Griffiths, as for social-scientific understandings of legal pluralism more generally, the focus is on legal orders and the relations between them (see further Chalmers, 2017: 2–9; Davies, 2005: 94–96). A critical legal pluralism, in contrast, focuses on plurality within law, that is, how every single law – such as the South Australian colonial law on the recognition of Indigenous land rights – is itself plural.…”

“…There is, therefore, an ‘objectivity’ to law, and a legal ordering, but this is approached subjectively and disorderedly, through disparate human acts and interactions, rather than just through official institutional ones. An official lawmaking authority, such as a parliament or court, might articulate what the law is, but it is the ‘customizing’ of these ‘explicit and formal normative creations’ in everyday life that brings the law alive (Macdonald, 2011: 326; see further Chalmers, 2017: 2–9). As Margaret Davies puts it: ‘law is discursive, performed, assumed, located, relational, and material.…”