Plurality, Law and Legal Traditions

Introduction

Globalization has caused the world to become adrift with one another. It is the reason for multijural legal systems, and in the course of this, has caused discord. According to Patrick Glenn, in his book Legal Tradition of the World, the affects of globalization in regard to the informality of one legal system, will not occur. The sheer diversity, from Hindu law, Muslim Law, Chinese law and African laws, throughout the world, all with their unique internally complex legal system, cannot lead to an assumption that at some point in the future there will no longer be any in the world, and that, one legal system will be universalized . The plurality of law, as a majority opinion, constitutes nothing more than a yardstick of westernized superiority. It starts with the westernized conception of law, as Glenn approached it, “one truth, one tradition”, and seeks to impose it as the universal against others . This is the gravest of misconceptions, as all law stemmed initially from chthonic traditions, it cannot be said that they are unable to be compared, contrasted and embedded dually within society. According to Glenn, the most appropriate way to think about the plurality; is the nature of law and legal tradition, although complex, and by definition, non-universal and non-universalizing, it still can present accommodation with other systems . In the forefront of a globalized world, this information can help legal scholars comprehend, not merely the differences of a legal system, but the strength, formidability and opportunity to harmonise, therefore, creating a combined uniform conception of the nature of law. Although Glenn assimilates a strong argument, to build and construct bilingual systems of law, in that, creating a sort of uniformalism, itself, is nothing more than a paradox. And, though we may be able to compare oranges with apples, the consensus against change, most likely, will hinder support to do so.

Universalizing Legal Systems

One of the key issues with trying to universalize a legal system is the multifarious nature of law traditions, as within each legal system, smaller less pronounced traditions exist. In some cases, these systems support, but often actually oppose elements of the traditional law . It seems ill-fitting to be able to harmonise, or uniform, for when internal conflict resides dominant for long enough, even when in contradiction to central facets, it becomes incorporated into the tradition . Casuistry, which has explicit roots in Roman, Talmudic, Islamic and common law, would not be opposed to Asian traditions, nor chthonic, but neither would track its exercise . This inclusion of varying legal principles shows that a system can adopt and implement from others fluently, but the issue arises whether a dominant thesis will overlook and foreshadow marginalized groups, purely for the universalism of appeasing the dominant class.

The main issue with universalising a legal system is diversity. There is no guarantee of the survival of a legal system either. With the ability to conform, through multivalencey, it allows a tradition to transform, and through this transformation, has allowed each legal system advantage over another . Whether it is ecological, religious, ethical or rational truths, all have employed enormous effort over a prolonged period of time . The complexity of each system, in relation to the struggle of the competing thesis, has created diverse systems of law, equal in ability. Glenn proposes, in relation to the initial complexity, a response to how to create harmonious diversity; that the case of natural, harmonious diversity might be overcome, if enough people decide to act upon contrary assumptions . The issues pertaining to his answer, which he then prescribed in his subsequent sentences, negates to encompass the initial issue of a social contract. Although he concedes that the system may collapse, ‘interspersed with bouts of hegemony’, it seems that the world would fall into tyranny, disrepute and eventual chaos to the exclusivity of survival of the fittest . Without the initial governance of a sovereign and individuals with a key understanding of law, the affects of this system would likely be catastrophic.

Law and Society

Perhaps the greatest flaw in the schema proposed by Glenn is his optimism towards humanity. His concept; “a reason for acting positively, for sustaining diversity and not simply allowing diversity to sustain itself”, provides an adequate approach, but does not equate to “toleration of all legal systems” . It seems paradoxical, if not derisory; the mutual contention placed between these two principles will lead into a state of chaos, corruption, and disarray of competing principles. Similarly, in attributing that although “bivalent” western thinking need not be abandoned, it does not appear equally tangible in the larger schema. Individual ideologies and tyranny seem to form higher status within construing such ideas, and rather than a “peaceful normatively continuation which compliments itself”, the means and issues as who “judges what is acceptable”, and what class determines the level of control, are both worrisome .

Identity

The greatest fundament to universalising, and adopting a utopian society, harmonised through a legal system, is the underlying identify of the society. Although Glenn positions himself to adopt and evaluate such issues, it appears that his uniform conception of the nature of law and legal traditions, in that the sheer diversity, from Hindu law, Muslim Law, Chinese law and African laws, throughout the world, all with their unique internally complex legal system, cannot lead to an assumption that at some point in the future there will no longer be any in the world, and that, one legal system will be universalized . The plurality of law, as a majority opinion, constitutes nothing more than a yardstick of westernized superiority. It starts with the westernized conception of law, as Glenn approaches it, “one truth, one tradition”, and seeks to impose it as the universal against others. According to Glenn, the most appropriate way to think about the plurality; is the nature of law and legal tradition, although complex, and by definition, non-universal and non-universalizing, it still can present accommodation with other systems. In the forefront of a globalized world, this information can help legal scholars appreciate, not merely the differences of a legal system, but the strength and formidability to harmonies, thereby, creating a combined uniform ‘conception’ of the nature of law. Although Glenn assimilates a strong argument, to build and construct a bilingual systems of law, in that, creating a sort of uniformed utopia, itself, is nothing more than a paradox. And, though we may be able to compare oranges with apples, the consensus against change, most likely, will hinder support to do so.

References

Glenn, P, Legal Traditions of the World, 3rd ed, Oxford University Press, New York, 2007.

Wener, Menski, Comparative Law in a Global Context (2006), pp 16-17