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1. LEGAL PLURALISM

2. What is
MB HOOKER MASAJI CHIBA
 The existence of ‘multiple
systems of legal obligation…
within the confine of the
state’.
Characteristic
More than one legal system is
applied within one country.
However it is not just legal
system, it might includes,
bodies of law (e.g: international
law, regional law), quasi-legal
activities (mediation,
arbitration, creation of new lex
Mercator is, private law making
activities).
“the coexisting structure of
different legal systems under
the identity postulate of a
legal culture in which three
combinations of official law
and unofficial law, indigenous
law and transplanted law, and
legal rules and legal
postulates are conglomerated
into a whole by the choice of
a socio-legal entity.”
Working definition offered by
Chiba

4. Emergence
 Challenges legal centralism, law is the product of
a state and owned by a state.
 Legal pluralism is a reality, legal centralism is a
myth;
 Leopold Popsil, no human society possesses “a
single consistent legal system, but as many
much systems as there are functioning
subgroups. Conversely, every functioning
subgroup of a society regulates the relations of its
members by its own legal system.”
 Despite the claims that LP is post-colonist
phenomenan, history proved that it is a ‘common
historical condition’.*

5. “LEGAL CENTRALISM”
“legal centralism,” according to which all law is and
should be state-sponsored law, uniform for all
persons, applied equally across all social groups,
and emphatically superior to, if not exclusive of, any
and all other systems or repositories of law.

6. Why
 Colonization
“The process began in the 17th century with the
expansion of the civil law and common law systems
outside Europe and reached its greatest extent in
the nineteenth century and twentieth centuries. The
laws with which the ‘Western’ laws came into
contact included the great ethical and religious
systems as well as numberless varieties of
unwritten laws. The result has been that large
portions of the globe are subject to laws the
principles of which are drawn from a number of
widely differing cultures. These principles do not
usually combine easily with each other; more often
than not they coexist uneasily or conflict in a variety
of ways.” MB Hooker

7.  Not the main reason, starts since medieval period.
 Construction of modern states cause the state to
take control over law making power.
 Concretised when colonisation begins, due to the
transplants of foreign law into the colonies.
 The outcome – customary laws, religion law are
sidelined and lost the status as official law.
 DECOLONISATION
 GLOBALISATION – interconnected world, migration,
global trade and commerce
 Lead to global legal pluralism.

8. Category
 Griffith’s categorisation:
1. Weak (juristic): ‘the sovereign (implicitly) commands different
bodies of law for different groups in the population’ (operate
within the ideology of legal centralism)
Malaysia: Syariah Law for the Muslim, Native law for the natives of
Sabah and Sarawak
1. Strong: ‘a situation where not all law is state law nor
administered by a single set of state legal institutions, and in
which laws is therefore neither systematic nor uniform’.
The law exists outside the established legal system, made by
groups of people for themselves or of ethical and religious law.
Church Law, Customary law etc.

9. Legal Pluralism is incompatible
with modern legal system?
First, it violates such fundamental principles as
“equality before the law,” and “universality.”
Second, it is incompatible with the “rule of law.”
Third, it compromises the state’s rightful monopoly
on the
legitimate use of violence.
Fourth, Competing claim for recognitions from the
state-conflicting claims of authority – conflicting
demands or norms.
the norms and values of customary law lead officials and private persons to disregard the norms
of state law (for example, by engaging in nepotism or ethnic patronage), the result is a deficiency
in the rule of law.

10. Ilustration
 Malaya is a plural society. Prior to British
occupation the status of Malaya as a commercial
port causes various races to visit and settled on
its land.
 When British occupy the Tanah Melayu, they
introduced Royal Charter of Justice 1807;
 Local inhabitants laws, the Malaya adat, Islamic
law.
 Migrants – Chinese and Indians, customary laws;
 Merdeka 1957 and establishment of Malaysia
1963.
 Common law, Islamic Law, Customary law, Native

11. The Royal Charter of Justice of 1807 British Colony of
Penang
 It was recognised that some aspects of English law would have to adapt
to the distinct religions, manners and customs of the local inhabitants of
Malaya. This was the interpretation of the provisions of the Royal
Charter adopted by Chief Justice Maxwell in Choa Choon Neo v
Spottiswood (1869) 1 Ky 216 at 221:
 "In this Colony, so much of the law of England as was in existence
when it was imported here, and is of general (and not merely local)
policy, and adapted to the conditions and wants of the inhabitants is the
law of the land; and further, the law is subject in its application to the
various alien races established here, to such modifications as are
necessary to prevent it from operating unjustly and oppressively to
them. Thus, in questions of marriage and divorce, it would be
impossible to apply our law to Mohammedans, Hindoos and Buddhists,
without the most absurd and intolerable consequences, and it is
therefore held inapplicable to them".

12. Art 160 Federal Constitution
 A sign of legal pluralism is accepted;
 “law” includes written law, the common law in so
far as it is in operation in the Federation or any
part thereof, and any custom or usage having the
force of law in the Federation or any part thereof;
 However, the clause ‘having the force of law’ may
hamper the evolution of legal pluralism
jurisprudence in Malaysia as the rooms become
narrower.

13. Australia
 Tribal marriages were found to fall within statutory
references to "husband and wife“. Roberts v Devereux,
unreported, Supreme Court of the Northern Territory
(Forster CJ), 22 April 1982 noted ALRC 31, 60 [74]
 Mabo v Queensland [No 2], right of indigenous
peoples to enjoy native title to their lands.

14. South AfricaChrista Rautenbach , Deep Legal Pluralism In South Africa: Judicial Accommodation Of Non-state Law, (2010 ) Journal Of Legal Pluralism, 140
 Legal pluralism is accepted as a means to guarantee “cultural
and religious rights” provided that “the state may pass legislation
recognising systems of personal and family law consistent with
and subject to other provisions of the Constitution.” (weak
pluralism)
 Section 15(3) of the SA Constitution favours legal pluralism;
(a) This section does not prevent legislation recognising-
(i) marriages concluded under any tradition, or a system of
religious, personal or family law; or (ii) systems of personal and
family law under any tradition, or adhered to by persons professing
a particular religion.
(b) Recognition in terms of paragraph (a) must be consistent with
this section and the other provisions of the Constitution.

15. Interpretation clause s.30 (SA
Constitution)
(1) When interpreting the Bill of Rights, a court, tribunal
or forum- (a) must promote the values that underlie an
open and democratic society based on human dignity,
equality and freedom; (b) must consider international
law; and (c) may consider foreign law.
(2) When interpreting any legislation, and when
developing the common law or customary law, every
court, tribunal or forum must promote the spirit, purport
and objects of the Bill of Rights.
(3) The Bill of Rights does not deny the existence of any
other rights or freedoms that are recognised or
conferred by common law, customary law or
legislation, to the extent that they are consistent with
the Bill.

16. The problems
 Interpersonal conflict within the system.
 Dilemma between recognition of cultural diversity,
and the need for uniformity of law.
 Superiority of state law & personal law.
 The raise of monist – a single source of validity
and legitimacy for all normative issues.
 “Freedom of religion” OR “Freedom from
Religion”
 Pluralism subordinates religion and its truth to the
postulate that all religion and non-religious
ideologies are basically equivalent and
interchangeable while at the same time posting
its own ideology as its truth as paramount.

17. How does legal pluralism influence the
outlook of state law?
 Acknowledgement of the existence of ‘others’ in
the legal system.
 Special arrangement was made to allow the
application of different legal system. For example:
the recognition of customary practices

18. Problems
 Difficult to identify ‘law’ since law become messy,
incoherent and self-contradictory.
 But law requires constant examination, as the
complex structure of society involves interactions
among diverse members of society across time
and space.

19. Interactions
Natural
Law
Socio-
legal
Positivis
m
Pluralism
Others:
Anthropological;
History

20. Globalisation & LP
 International LP
 Human Rights claim by NGOs challenging state
laws;
 Development of private, unofficial legal orders-
transnational commmercial transaction (WTO –
GATT)
 Transnational legal networks -
 Global movement of people

21. The problems if LP
 The confusion of the concept;
 Comprises of different disciplines- with different
ideas & understanding – international,
anthropological, sociological.

22. 6 systems of normative ordering in
social arena
1) Official or positive legal systems;
2) Customary normative systems;
3) Religious normative systems;
4) Economic/capitalist normative systems;
5) Functional normative systems;
6) Community/cultural normative systems.
LP is used to characterises interactions between
competing and conflicting official legal systems or
between an official system and one of more of the other
normative systems.
CLASHES!
Characteristics;
-Binding;
-Legitimate;
-Have
normative
supremacy;
-Have control
over matters
within their
scope.

23. How to handle clashes?
1. To have a neutral stand with respect to the
various communities/religions, allowing a
degree of autonomy to each;
2. There is an identity of some kind between the
dominant community and the state legal
system;
3. Absorb the competing systems by recognising
customary, religious, economic or community
norms etc;
4. Take the effort to suppress the contrary norms
and institutions – declared them illegal;

24. Common clashes
1. Liberal (Individualist) V Non-liberal (Non-
Individual) Cultural Norms
2. Rule-based systems with winners and losers V
Consensual Systems oriented towards
satisfactory resolution
3. Not static as time change new clashes will
emerge.

25. CAUTION
Avoid falling into either of 2 opposite
errors
State law
matters above
all (legal
scholars)
Other legal or
normative
systems are
parallel to state
law (sociologist,
anthropoligist)
Both systems must be examined on their own term,
to see the relationship.