INTRODUCTION
Legal Pluralism is a concept that refers to the existence of multiple legal systems within a single jurisdiction society or geographical area. It recognizes that different groups of people within a society may be governed by different sets of laws, which can be state laws, religious laws, customary laws, etc.
All states today have legal pluralism existing in their respective jurisdictions. Very few states exist today wherein the state justice systems have full authority without dividing it with nonstate justice systems. However, even in these kinds of states, legal pluralism still exists due to the existence of other forms of grief redressal mechanisms such as Arbitration and mediation, international treaty obligations, etc.
Since colonial times, the colonial governments incorporated local justice systems to expand and institutionalize their rule. However, legal pluralism has a history that is longer than that. From the mid-to-late medieval period in Europe, a diverse array of laws and institutions coexisted within the same space, often without any overarching hierarchy or organization. These included local customs, feudal laws, and the canon laws of the Roman Catholic Church. Various courts, such as municipal, merchant, royal, and manorial courts, operated simultaneously. This multiplicity of legal norms and systems within a single jurisdiction was the norm for at least 2000 years of European history, dating back to the Roman Empire and becoming even more pronounced after its fall. By the 17th and 18th centuries, a clearer distinction between public and private domains began to emerge.
State law became the pre-eminent form of law and all other laws over time lost their equal standing and autonomous legal status. In the late 15th century European colonisation commenced and ended in most parts of the world by the 1970s. Colonization also impacted the emergence of legal pluralism in these different parts of the world based on the period in which colonization took place, the circumstances of the areas colonized, and the motivation of the colonizing powers. For example, the situation of Australia or North America was different from Central America and India wherein the former was more sparsely populated than the latter which was more densely populated. These contrasting situations led to variations in legal approaches.2
In India, the roots of legal pluralism date back to the Mughal and British eras. In the Mughal era, a diverse blend of Muslim and Hindu laws and institutions co-existed. The British too met these complex intersections of laws and when colonizing powers began to exert greater legal authority, from the late 18th century through the late 19th century, it was usually accomplished through this ‘indirect rule’, which relied upon already sources of political authority like using Indigenous leaders, etc. or involved creation of so-called ‘native-courts’. Courts like Diwani Adalat (for civil cases), the Foujadri Adalat (for crimes and misdemeanours), etc. existed. There were appellate courts too for hearing cases from the inferior courts. Arrangements of these types led to the emergence of dual legal systems with various complex mixtures and combinations and mutual influences. At the close of the 20th century ‘globalization’ led to another wave of legal pluralism. Global organizations began to be set up and different regulatory organizations came into being. States began losing some of their powers like Economic regulations as Global Market Systems emerged.
Today legal pluralism is present in almost all States whether its existence is explicitly acknowledged or not.
SIGNIFICANCE OF LEGAL PLURALISM
Legal pluralism is a concept that is significant for several reasons, which are outlined below:
1: Acknowledging cultural diversity- legal pluralism ensures that diverse cultures and religions are acknowledged and their civil laws are allowed to thrive in the same area where they (followers) reside.
2: Conflict Resolution – in developing countries an estimated 90 per cent of disputes are handled outside of state justice systems, making it imperative to understand the existing legal pluralism in a given area and strengthen the non-state justice systems. This also helps in mitigating their opposition.
3: Legal theory and practice – a thorough understanding of legal pluralism ensures that the various complexities of the multiple legal systems are understood and subsequently inclusive rules and regulations are made accordingly.
ARCHETYPE OF LEGAL PLURALISM
Archetype refers to a perfect example of a typical example of something. There are four main types of archetypes of legal pluralism as posited by scholar Geoffrey Swenson in his article ‘Legal Pluralism in Theory and Practice’ which are – combative, competitive, cooperative, and complementary. Having a grasp over the prevailing archetype allows the state as well as non-state actors to effectively address the ground realities of the legal sector while also fostering a more conducive environment for judicial state-building. Supra
1: Combative Legal Pluralism: in this archetype, both the state and nonstate systems are hostile to each other. They openly seek to undermine, discredit, and destroy each other. Combative legal pluralism exists where post-conflict sate-building has failed or is heading Para in a negative direction. An example of one such country can be Afghanistan. Supra
2: Competitive Legal Pluralism: here the state’s pervasive authority is not challenged but nonstate actors also retain considerable autonomy, it is present in many developing countries and is extremely common after conflicts. It can become persistent and widespread, particularly when nonstate dispute resolution is seen as legitimate and authoritative. An example can be the situation of Timor-Leste where state-building efforts started in the backdrop of competitive legal pluralism but as the state gained legitimacy, authority as well as capacity, the situation normalized. Supra
3: Cooperative legal pluralism: herein nonstate justice authorities retain significant authority, however, they also by large accept the state’s regulatory legitimacy and are more inclined to collaborate towards common objectives. The clashes are not frequent and if happen are over social issues rather than over judicial power. An example can be Timor-Leste since 2006.
4: Complementary legal pluralism: in this type of legal pluralism the nonstate justice system is subordinated and structured by the state and is integrated into, and ultimately falls under the regulatory purview of the state. An example can be the ADR mechanisms in various countries including India, wherein other nonstate justice systems also thrive like the Lok Adalat. Supra
PRACTICAL ASPECT OF LEGAL PLURALISM IN INDIA
Legal pluralism exists worldwide and its presence can be seen all around the world. In India particularly, a cooperative type of legal pluralism exists. Religious personal laws are given autonomy and are allowed to formulate laws that as long as are not unconstitutional, apply to the people of their faith. Examples of such laws can be the Hindu Marriage Act of 1955, the Hindu Succession Act of 1956, the Muslim Personal Law (Shariat) Act, of 1937, etc. ADR mechanisms like Lok Adalat also provide a fast and quick resolution outside the traditional court systems. These Lok Adalat are statutory bodies established as statutory organizations under the Legal Service Authorities Act, 1987 to provide an economical dispute resolution mechanism as they eliminate the need for a long litigation process.
The state justice system, however, takes centre stage when it comes to matters like crime and civil suits and even holds the power to pronounce any personal laws that they find unconstitutional as void and inapplicable. This legitimacy and authority with the state justice system while giving appropriate autonomy to nonstate justice systems ensures that the legal domain in the country is well-balanced and cooperation thrives between the systems of justice.
CONCLUSION
In summary, legal pluralism is a pervasive and significant concept, crucial for understanding the foundational realities of the legal sector. This comprehension aids in cultivating a stable and cooperative justice system within a state. Despite the existence of substantial scholarly work on legal pluralism, there remains ample opportunity for more nuanced exploration. Grasping the structure of legal pluralism within a state is also advantageous for policy-making and implementation. By thoroughly understanding the existing forms of legal pluralism, states can make more informed decisions regarding the necessary policies to address the interplay between different legal systems. Consequently, understanding the interaction between state and non-state justice systems is invaluable for formulating well-informed policy decisions.
Author(s) Name: Medha Arora (Maharashtra National Law University, Nagpur)
