Legal Pluralism

Panchayats and village bodies, both the constitutional institutions and the customary caste and community panchayats which are not state bodies at all.

Khap panchayats and community assemblies, which exercise no lawful authority and do in fact regulate conduct, particularly marriage, and enforce their decisions by boycott and worse. These are legal pluralism in the strong sense and they are the reason the concept is not a comfortable one.

Religious institutions administering their own affairs.

Trade and market orders: the customs of a trade, the rules of an exchange, arbitration under standard-form contracts, and the informal credit and enforcement arrangements of communities described in [Social Determinants of Economic Development].

Organisational orders: the rules of a firm, a university, a housing society or a profession, each with its own procedure and sanction.

Why the concept matters

It describes what is actually there. Most disputes in India are settled without the state's law, and an account of the legal system that describes only the courts describes a small part of the field.

It explains why laws fail. A statute enters a field already occupied by other orders, and it competes with them. The effectiveness of a rule depends on its relation to the orders already in the field, which is the argument of [Law and Social Change] restated in this vocabulary.

It identifies where power really lies. A person's conduct is governed by whichever order can most effectively sanction them, and for many that is the community, not the state.

It sharpens the access question. Non-state orders are cheap, quick, local and comprehensible, which are precisely the qualities the state's courts lack, and that is why people use them.

The argument against celebrating it

This is essential, because the concept is often presented as though plurality were simply a good.

1. Non-state orders have no safeguards. No notice, no hearing, no representation, no proof, no proportion, no appeal, and no bar on punishing a person's family. This is exactly the point made about informal social control in [Formal and Informal Social Control].
2. They usually reproduce local hierarchies. A body drawn from the dominant caste of a village decides for everyone in it.
3. They fall hardest on the weakest. Women, the young, and those of low status within the group have least voice in the order that governs them, and least ability to leave it.
4. Exit is often not available. A person can leave a firm; leaving a caste or a community is a different matter.
5. They may enforce what the state forbids. Decisions on inter-caste marriage are the standing instance, and they have led to violence and to judicial directions against such bodies.

The honest position is therefore double: legal pluralism is an accurate description of how societies are actually regulated, and it is not a normative endorsement of every order it describes. Describing the khap panchayat and the trade arbitration by the same concept is analytically correct and morally neutral, and an answer must say so rather than sliding from the description into approval.

The uniform civil code, set out neutrally

Article 44 of the Constitution, among the Directive Principles, provides that the state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. It is not enforceable by any court, and the Supreme Court observed in Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945, 1985 (2) SCC 556, that it had remained a dead letter. That case's facts and holding are worked in [Law and Social Change], and the observation is cited here only for the proposition.

The arguments made for a uniform code: equality of citizens irrespective of religion; equality within communities, particularly for women, whose position under different personal laws differs; national integration; simplicity and certainty; and the constitutional direction itself.

The arguments made against: that freedom of religion includes the freedom to be governed by one's own personal law in matters closely bound to religious practice; that plurality is a settled feature of Indian society, and accommodation rather than uniformity is the constitutional method described in [Integration and Isolation]; that a code imposed without consent would be evaded and would provoke exactly the reaction described in [Law and Social Change]; that reform from within each community has produced change and can produce more; and that uniformity should not be confused with equality, since a uniform rule may bear unequally.

The chapter takes no position, because sociology is categorical and not normative, from [The Nature and Scope of Sociology]. What sociology contributes is the observation that a change of this kind touches identity, that identity-touching change produces resistance, and that its success would depend on the conditions listed in [Law and Social Change] rather than on the merits of the argument.

A worked example

A couple from different castes in a north Indian district marry against their families' wishes.

The state's order supplies a valid marriage under the Special Marriage Act 1954, protection, and remedies if they are threatened.

The caste order supplies a prohibition of the marriage, and sanctions: boycott of both families, exclusion from community functions, and pressure on relatives to sever contact.

The village order, through a community assembly, may add a decision purporting to annul or condemn the marriage, which has no legal authority whatever and may be entirely effective socially.

The family order governs inheritance, support and belonging, none of which is enforced by anybody except the family.

Which order actually governs them? The state's order determines their legal status and can protect them if it is invoked, if they can reach it, and if it acts in time. The other three determine where they can live, who will speak to them, what they will inherit and whether their parents can remain in the village.

That is legal pluralism as a lived condition rather than a concept, and it shows both halves of the chapter: the state's law is one order among several and is frequently not the effective one, and the non-state orders here are neither quaint nor benign.

Quick revision

1. Legal pluralism: two or more legal orders operating in the same social field.
2. Weak or juristic: the state applies different bodies of law to different groups, as with personal laws. Strong or deep (Griffiths, Moore): normative orders exist independently of state recognition.
3. Griffiths: legal centralism, the belief that law is the law of the state and uniform for all, is empirically false. Moore: the semi-autonomous social field makes and enforces its own rules and is affected but not commanded by the state.
4. Ehrlich's living law is the ancestor of the concept.
5. Indian sources: personal laws with the Special Marriage Act 1954 alternative; custom recognised by statute; Fifth and Sixth Schedules and autonomous district councils; panchayats, both constitutional and customary; khap panchayats; religious institutions; trade and organisational orders.
6. It matters because it describes what is there, explains why statutes fail, locates real power, and explains why people prefer cheap, quick and local forums.
7. It is a description, not an endorsement: non-state orders have no notice, hearing, proof, proportion or appeal; they reproduce local hierarchy; they fall hardest on women and the low-status; exit is often unavailable; and they may enforce what the state forbids.
8. Article 44 is a Directive Principle, unenforceable; the arguments for and against a uniform civil code are set out, and sociology takes no position on the merits.

Test yourself

1. Define legal pluralism and distinguish its two senses. The condition in which two or more legal or normative orders coexist and operate within the same social field. In the weak or juristic sense the state remains the sole source of law and applies different bodies of it to different groups, as India's personal laws do, so the plurality exists inside one legal system. In the strong or deep sense, associated with Griffiths and Moore, normative orders exist and operate independently of state recognition, since every semi-autonomous social field generates rules and enforces them by its own means.

2. What is a semi-autonomous social field? Moore's term for a social field, such as a trade, a caste, a village, a firm or a profession, which generates its own rules and induces compliance with them by means of its own, while being at the same time set in a larger social matrix, including the state, which can affect it but cannot simply command it. The concept explains why legislation entering such a field is received, adapted or resisted according to the field's own rules rather than simply applied.

3. Give the Indian sources of legal pluralism. Personal laws applying different rules of marriage, divorce, succession and maintenance to different communities, with a secular alternative under the Special Marriage Act 1954; custom, which statutes repeatedly preserve where it is ancient, certain and reasonable; tribal law under the Fifth and Sixth Schedules, with autonomous district councils having powers of administration of justice; panchayats, both constitutional and customary; khap panchayats and community assemblies exercising no lawful authority; religious institutions; and the orders of trades, exchanges, firms and professions.

4. Why is legal pluralism not simply a good thing? Because the non-state orders it describes operate without safeguards: no notice, hearing, representation, proof, proportion or appeal, and no bar on punishing a person's family. They generally reproduce the local hierarchy, being composed of those already dominant; they bear hardest on women, the young and the low-status, who have least voice within them and least ability to leave; exit from a caste or community is not comparable to leaving a firm; and they may enforce what the state forbids. The concept describes them accurately and endorses none of them.

5. Set out the arguments for and against a uniform civil code. For: equality of citizens irrespective of religion; equality within communities, particularly for women whose position differs between personal laws; national integration; simplicity and certainty; and the direction in Article 44 itself. Against: that religious freedom includes being governed by one's own personal law in matters bound to religious practice; that accommodation rather than uniformity is the constitutional method for a plural society; that an imposed code would be evaded and would provoke resistance; that reform from within communities has produced change; and that uniformity is not the same as equality, since a uniform rule may bear unequally.