Abstract: European Socio-Legal Studies and Legal Pluralism

In Western universities, law has long been perceived by lawyers and jurists at large as a simple technical skill that prepares students to get a position in courts, mainly as lawyers and judges. Only a minority of scholars understood the capacity of the legal field to contribute to social sciences. In several European faculties of law for instance, it was not until the 1960’s that the very first initiatives in interdisciplinary research in the field of law were inaugurated; an evolution in which the memory of the colonial history of European countries intervened and made jurists aware of the complexity of normative institutions and practices.

Socio-legal studies have grounded their hypothesis on several lines, one of which was the theory of legal pluralism. The success of the theory by the mid-20^th century among anthropologists of law was certainly due to a reaction of concerned scholars towards the dominant and monopolistic theory of legal centralism within Western universities and other academic institutions at the time. However the predominant influence of legal monism in the jurist’s milieu had been thwarted when researchers working on African and Asian societies noted the contradiction existing between imported centralised legal systems and the pluralist organization of the colonized societies. In Europe, especially in very unified political regimes, jurists were progressively compelled to admit the validity of empiric observations made abroad and they later emphasized the fact that their own societies were also governed by plural systems of law.

The development of theories on legal pluralism in recent years owes a lot to the involvement of researchers within the “post-colonial” legal field against the idea that law would be homogeneous and exclusively controlled by the state. As many sociologists and anthropologists have indeed shown since Emile Durkheim, law is before all characterised by its pluralist nature like any other expression of social life. However the dominant Western perceptions of law had a tendency to euphemizing the plural dimension of law in favour of a “doxa”, that of the pre-eminence of the State and particularly the nation-state. European jurists often posit in a rather peremptory manner that societies where the state is poorly structured are fundamentally plural, as opposed to those societies where the state is highly centralised. The codification process in Europe since the 17^th century was inspired by this approach, which was even reinforced when the codes spread out in the world. Its circulation worldwide happened under the hegemony of the nation-state that was formalised in European history with the Treaty of Westphalia (1648). The logic consequence of Max Weber’s observation that the power holder in a given society exercises a monopoly over “legitimate” violence is then that the nation-state also has a monopoly over “stating the law”.

Such a conception has for long been dominant among jurists. It was in fact based on colonial situations that European jurists have begun to recognise the need for a certain degree of pluralism that would call into question legal centralism. In Algeria for instance, French jurists have incorporated local “customs” along “Islamic law” and other local norms and judicial practice into the French legislation applied to local people. This way of codification was used for occulting the various local practices in order to reinforce the colonial arrangements of normative standards. At the end of the colonial period, new approaches of law raised and disqualified the evolutionist process of denying customs and communitarian legislation.

This renewed approach takes into account various contributions among which it is possible to mention some prominent theories which have deeply influenced this field of research. I’ll remind here Eugen Ehrlich and his “living law”, Leopold Pospisil and his “legal levels”, Sally Falk Moore and her “semi-autonomous social fields”, Jacques Vanderlinden and above all John Griffiths who insisted on the “ideological” dimension of the theory of legal centralization. All of them insisted on the existence of the multiple places where law is produced within a given society. On his part, Griffiths assumed that only the state would be able to produce a judicial system, which though not fully exclusive, would nevertheless be central and hegemonic.