15In the light of such a distinction between weak and strong definitions, Griffiths evaluates existing descriptive conceptions of legal pluralism. This explains his comments on Gilissen`s introduction and Jacques Vanderlinden`s contribution to legal pluralism (1972), which he criticizes for remaining at the level of « characterizing, explaining and justifying inconsistency within state legal systems ». 9On the contrary, anthropologists have no difficulty in discerning legal pluralism in its strong empirical sense. Here, Griffiths reviews the work of Ehrlich and Pospisil (see above) and then adds to the discussion the writings of M. G. Smith and 45. […] The law is what we attach the law to on etiquette. It is a term classically applied to a variety of multifaceted and multifunctional phenomena » (1997, op.cit.:128). In other words, « what law is is determined by people in the social arena by their own common customs, and not in advance by the sociologist or theorist » (ibid.: 314).
Consequently, a situation of legal pluralism would always exist « when more than one type of `right` is recognized by the social practices of a group in a particular social field » (ibid.: 315). Tamanaha argues that while legal pluralism asserts that the word law applies to many manifestations of a single basic phenomenon, its approach would assume that the same term « law » applies to many different phenomena. 5As a result, law is as plural as social life itself, representing rules « too practical to be supported by religious sanctions, too burdensome to be left to mere goodwill, too vital personally for individuals to be enforced by an abstract authority. » (Ibid.:68) 14 He asserts that legal centralism is an ideology and accuses many social scientists of confusing a normative attitude with a descriptive one. According to him, law does not exist where the proponents of right-wing centralism claimed it existed: if it existed, legal centralism would be « a myth, an ideal, a claim, an illusion »7, while legal pluralism would be the fact. Griffiths then turns to the distinction between what he calls strong and weak definitions of legal pluralism. The first refers to legal systems in which the sovereign orders, validates or recognizes different legal bodies for different population groups; However, a weak conception of legal pluralism is above all a (weak) conception of legal centralism, because it gives the central state the ultimate power to recognize or deny the existence of these different legal interests. The strong definition of legal pluralism, on the other hand, is one that, according to Griffiths, deals directly with « an empirical state of society »8 and not with a mere ideology. 25The theory of autopoiesis is based on three main hypotheses: law, as an autonomous epistemological subject, constructs its own social reality; Law as a process of communication produces human actors as semantic artifacts; and because of its simultaneity of dependence and independence from other social discourses, modern law constantly balances between positions of cognitive autonomy and heteronomy (Teubner, 1992a: 1150). On this basis, Gunther Teubner, together with Niklas Luhmann, a leading figure in the theory, built his own theory of legal pluralism.
33In other words, law is not an analytical concept, but only what one claims to be, a position that makes it possible to deny the relevance of a question that a hundred years of legal sociology and anthropology have not been able to clarify: the question of the limits of juricity. The existence of the right is proven only by its self-assertion, or rather by its identification as such by people. This does not exclude the study of normativity in general – on the contrary – but seriously questions the possibility of realizing it under the auspices of a non-descriptive (« legal ») ideology (« pluralism »).16 It is non-descriptive in the sense that it used legal vocabulary to describe general normativity and used general normativity to completely dilute the law (as people do in general). is called). It is ideological in the sense that legal pluralism, although it tends to recognize all diffuse normativities, ignores the fact that there is no way to recognize normativity as law without an authority having the right to say what is right and the ability to interpret it as law, which means that arguing against the law of the state would necessarily mean, to advocate for such a different authority. 44From an epistemological point of view, the problem of definition is fundamental. The real danger of talking about « law » in dealing with all forms of norms is, first, to equate them with something that people consider to be completely different. Second, it is a question of taking a product of political theory (constitutional law) as a sociological tool (legal pluralism). Third, a functional definition of some general social mechanisms (social control) can be assumed, while unintentional phenomena cannot be attributed a social function. Instead of elevating the law to the status of an instrument of analysis, I would suggest returning to the observation of social practices and considering, in the vast field of many normativities, that the law is what people call the law.
24The concept of polycentricity of law was also developed by researchers from the Nordic European countries. This is a category of cases of legal pluralism described as the use of sources of law in various areas of public administration. As Gordon Woodman (1998) summarizes: « The main hypothesis currently being researched is that different organizations often use different sources of law and that, even if they use the same sources, they maintain different orders of priority among themselves. » According to Agnete Bentzon (1992), the aim is to complete « Sally Falk Moore`s image of semi-autonomous social fields within the state apparatus ». 22There is a continuous porosity between these various networks of legal systems. A person`s life « consists of an overlap of different legal systems, that is, interlegality » (Santos, op. cit., 298). 1Legal pluralism has become an important topic in social law research. Under this very broad concept, however, many different tendencies can be recognized, which do not share much, except the fundamental idea that law is much more than the law of the state. This article focuses on those theories that deal with the plural nature of law. It takes place in five stages. In a first section, he describes the historical-scientific context of the theories, namely the pioneering influence of Mauss and the works of Ehrlich, Malinowski, Adat Law School, Pospisil and Gurvitch.
In a second section, it deals with recent theories of legal pluralism and summarizes the approaches of many scholars and scientific trends in law; including Griffiths` radical theory, French language research, legal polycentricity, autopoiesis, and Chiba`s culturalist theory. The third section presents some of the most important criticisms of legal pluralism. These critical positions towards pluralistic legal jurisprudence focus on three main issues: the problem of definition, functionalist premises and culturalist conception, which undermine existing theories.
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