Legal Pluralism And Rule Of Law In Common Law And In Civil Law
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Category: General Law
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LEGAL PLURALISM AND RULE OF LAW IN COMMON
LAW AND IN CIVIL LAW Sahildeep Singh, Guest Faculty at Law Centre 1, University of Delhi.
ABSTRACT
In this paper, the researcher intends to lay down the not-so-tacit nexus between Legal Pluralism and the Rule of Law in Common Law and Civil Law. That is, how Common Law and Civil Law have been conventionally swayed by the tenets of rule of law and the existence of multiple legal systems in a given regime. As John Griffith said, “Legal Pluralism is a fact”. 1 Thus, the co-existence of legal and normative orders within a society greatly influences the definition of “law” that common law and civil law traditions are trying to accomplish. The researcher aims to examine how the nations holding either the common law or civil law will interact with the presence of multiple state & non-state laws within a given social arena. And how while interacting so, it will keep up its compliance with the principles of rule of law. 1 Brian Z.
Tamanaha, "Understanding Legal Pluralism: Past to Present, Local to Global" [2008] Vol. 30, Sydney Law Review 375 ❖ LEGAL PLURALISM AND RULE OF LAW: As John Griffith said, “Legal Pluralism is a fact”. It used to be a historical condition that was common to almost all social fields. Before the concept of the State and the legal system came into existence, people were usually governed by social norms or what we can call ‘Normative Order’ which at that time had the sanction of the people and thus, such normative orders or non-state orders were treated as the legitimate authority to regulate the conduct of the people up to the prevailing popular morality among the society. Any deviance from this standard of morality would be punishable by these respective normative orders.
Considering the longstanding dominant view that law is the prerogative of the State has made us live oblivious to the fact of legal pluralism. Many people follow the notion that Legal Pluralism is the result of the colonial past but that is not the case. This could precisely be substantiated by the definition of Legal Pluralism as given by the Pospisil, “every functioning sub-group in a society has its own legal system which is necessarily different in some respects from those of the other subgroups". 2 Therefore, for the existence of legal pluralism, the colonial past may be absent, all that is required is the existence of more than one sub-group. What else is required apart from the existence of multiple groups is that people living in these groups must be bound by the norms belonging to their respective groups.
But one thing could be said to be true given the absence of the colonial past, it would become an arduous job to discern the non-state normative ordering. Basically, Legal Pluralism is generally defined as a situation in which two or more legal systems coexist in the same social field. 3 John Griffith has defined it as, “that state of affairs, for any social field, in which behavior pursuant to more than one legal order occurs”. 4 But before moving further with the concept of legal pluralism, one must disabuse himself of the notion of “Legal Centralism” which states that indigenous laws do not form part of ‘law’, only the state and system of courts & lawyers constitute the legal ordering. These Indigenous laws can be included under the term ‘law’ only if they are formally recognized by the state.
Legal pluralism is concerned with the recognition of others social norms or regulations that had the legitimacy and authority equal to that of law, thus, relying on the presumption that law is much more than the mere existence of state law. Legal pluralism is readily based on the presumption that there never was the absence of legal order, it may have been in the form of
2 Sally Engle Merry, "Legal Pluralism" [1988] vol. 22, Law & Society Review 869
3 Ibid.
4 Ibid.
indigenous law, folk law, customary normative system, religious normative system, capitalist normative system, community normative system, etc. Following colonization, a unified legal system was imposed on the different territories which were adhering to their own indigenous law or customary law. In such a situation when the authoritative state law used to coexist with the non-state normative order, the two or more legal system comes into play within the same social field. Thus, making space for legal pluralism. Now to tackle this situation of legal pluralism, the colonial powers either deploy a strategy to either forcefully suppress such contrary non-state normative order or to incorporate these socalled indigenous or customary laws by way of codification /recognition.
Globally, many of the state legal systems have provided for customary practices and rules governing various aspects of the life of the general public such as marriage, divorce, succession, and other matrimonial issues. But it would often enact supremacy clauses with respect to recognizing these indigenous laws within the state laws. In Africa, the British and the French superimposed their law onto indigenous law, incorporating customary law as long as it was not "repugnant to natural justice, equity, and good conscience," or "inconsistent with any written law," The repugnancy principle was used to outlaw unacceptable African customs. 5 The question arises, what was the need for the state to outlaw or derecognize such prevailing essential indigenous law? The answer to this question was with regard to supremacy and sovereignty.
In such a situation, where there is more than one existing legal system, to whom people should make themselves accountable. Before the arrival of any such legal system, the field was successfully held by these non-state normative orders, they were legitimate and had normative supremacy with regard to matters within their scope. So, when the official legal systems enter into the supremacy domain of such long-held social community laws, clashes and conflicts are bound to take place. The concerned actors or the groups will manifest and exert the power and supremacy of their prevailing particular system given their long-held interest, commitment, and conviction in the system. It would be fair to conclude that these indigenous, customary norms could be powerful and resilient to any change put forth to them against the values of their long-held norms.
Basically, Legal Pluralism defines a limit to the role of the state and brings into the picture the equally powerful non-state legal order.
5 Supra note 2.
Coming to the concept of the Rule of Law, one fact that deserves to be mentioned before we begin is that the notion of rule of law lacks a universal agreement with regard to what it really implicates. This is so, owing to the fact that it evolves differently in different sociocultural contexts. Basically, the Rule of law favours objectivity and law. The rule of law lays stress on the supremacy of law and not of men, thus, implying that everybody whether ordinary citizens or any government official be bound by the laws so laid. This notion of equal application of the laws to everyone ensures the objectivity and equality of the application of the laws.
For a legal system to be declared robust, the rule of Law requires the pre-existence of the codified law with objectivity in the application and these laws must be promulgated publicly so that people are aware beforehand what act amounts to an offence and which act does not. There has to be promulgation and certainty with respect to the laws. This much effort must be made by the state in order to limit and coordinate the behaviour of the citizens on one hand and the government officials on the other hand. Before we move further, it would be germane to mention all the eight principles as expounded by Lon Fuller which he has termed as the inner morality of the Rule of Law.
These eight principles are governance by general norms, ascertainment of the laws promulgated, lucidity with respect to laws, laws must not be retrospective, laws must be free from conflicts & contradictions, feasible compatibility, laws must not change frequently, and congruence between formulation and implementation. The legal system which substantially complies with the above-delineated principles could be called the robust one. There need not be perfect compliance with the above 8 principles which is also not easily possible, thus substantial compliance would be enough. Now the question arises whether the existence of legal pluralism would be in respect of compliance with the principles of rule of law or not. Fundamentally, the existence of legal pluralism is totally antithetical to the existence of the rule of law.
This inference would be very much palpable from the fact that legal pluralism recognises the co-existence of multiple laws at the same time in the same social field, thus, there would be uncertainty with regard to the compliance of multiple laws. Whereas the rule of law posits the promulgation of certain-lucid laws which are free from conflicts and contradictions. The very primary function of the law is to channel the behaviour of the people in the society so as to preclude them from encroaching them each other’s liberty. Now, given that there exists legal pluralism in society, one single person is mandated by two different laws to perform two contrary duties. In such a situation, the very primary function of the law is defeated owing to the fact that there lies conflict in the law with regard to its compliance.
Considering the co-existence of more than one law in society also ensures the co-existence of conflicting duties in society. For instance, the state may make laws with regard to bigamy and make it punishable with imprisonment or a fine, on the other hand, suppose there exist Muslim customary law which allows people to marry more than once. It cannot be a situation in which a person is genuinely under a duty to not perform a particular act and genuinely under the liberty to perform a particular act, at any given point in time only one of these states of affairs must exist. In such a state of affairs, the state and non-state actors would try to establish supremacy over one another and undertake to discredit or put down the other established order. Thus, such chaos would further add to the failure of the legal system.
Such a state of affairs would totally negate the existence of tenets of rule of law. Rather than such a combative legal pluralism, there must exist a complementary legal pluralism where both the state and non-state actors must accommodate and recognize each other’s authority with respect to certain legal aspects in channelizing the society’s behaviour, only then, certainty inlaws could be achieved and ultimately comes the compliance with the rule of law. If we look at it from another perspective, where alternative legal forums are available for remedying the grievances of the people, it could be seen as upholding the rule of law.
If the state legal orders and non-state legal orders work complementary to each other, or a situation where one law fails to regulate the society but the other legal system acts as a backup in maintaining social order in the society, it would be a win-win situation with regard to legal pluralism and the compliance to the rule of law. Another issue that is intrinsic to the coexistence of multiple legal systems is that Indigenous people display a great awareness with regard to meticulous differences under various systems and processes, they have a strategic understanding with the view to exploit these existing multiple legal orders to their maximum benefits by taking recourse any of the order suitable to their purposes. If legal pluralism is going to exist then such a state of affairs needs to address.
Where a clever single person is availing multiple remedies for the same grievance, in such a case, it would be violating the principle of equality under the rule of law. The principle of equality requires the equal application of laws and to impart similar remedies for similar grievances, thus, such a situation where indigenous people try to exploit such coexistence of the legal system would be antithetical to the existence of rule of law. ❖ LEGAL PLURALISM AND RULE OF LAW IN COMMON LAW: Common Law and Civil Law, these are the two categories within which all, or almost all, of the legal systems of the modern world, may be grouped and both groups are respectively characterized by their origin. 6 The Common law and Civil law traditions are present in several parts of the world and they are the product of colonization.
First of all, we will be dealing with the coexistence of legal pluralism and the rule of law with that of the common law tradition. The common law, in England, emerged in about the Middle age and it was made applicable within the colonies of British. R. C. van Caenegem has therefore concluded that the best explanation for the existence of a common law tradition is the historical accident, or chance, of the military conquest of England by the Normans. 7 By 'chance' he means simply circumstances for which we can give no adequate explanation, and certainly no legal explanation. 8 As a result of this historical accident, the first identifiable, modern state came into being in Europe, with defined (though largely geographical) boundaries and a central government. 9 The way to establish the Norman Legal order was the deployment of a loyal judiciary.
There was no indigenous normative order, no loyal Chthonic people and also there were no available revelations that could be relied upon for the establishment of the Norman legal order. But ultimately, the monarch had to rely on something, so it did. It relied on corps of loyal arbiters and adjudicators to perform the judicial task who could manage the work in a controlled and efficient manner. The common law expanded slowly over time in the abundance of legal institutions and the legal order of medieval England and also British Empire. as a result of Initially, the common law was largely based on the writ, there were at that time 50 of them. Each writ provides for a specific remedy through a specific procedure and in case, one could not pigeon-hole his/her grievance within one of the writs then he would not be entitled to any remedy.
A writ was basically an instruction from the crown to a royal officer for the further procedure with regard to the dispute redressal. The judge and jury were engaged for the same purpose, where the judge has to examine whether the concerned case fell within the contours of the writ or not along with the general application of law whereas the questions concerning the fact-finding were left for the jury. In contemporary language the common law was therefore a law of procedure; whatever substantive law existed was hidden by it, 'secreted' in its 'interstices', in the language of Maine. 10 Considering the whole dispute redressal process moves around the judges, the common law remain uncodified throughout and never felt the absence 6 Max Rheinstein, “Common Law and Civil Law: An Elementary Comparison" [1952] Vol. 22, Revista Juridica de la Universidad de Puerto Rico 90
7 H. Patrick Glen, Legal Traditions of the World (Second Edition, Oxford University Press, 2004.
8 Ibid.
9 Ibid.
10 Ibid.
of the consolidated legislation for the reason that all the significant doctrines with regard to the application of law were judge-made and were contained in the precedents. Thus, common law even though made devoid of statutes would, nevertheless, be working as a viable robust legal system. Thus, more than the codification of the laws and doctrines, the common law laid emphasis on precedents and judge-made laws. Coming to the legal pluralism aspect with respect to common law, it would be pertinent to mention that in the medieval ages in England, Common law did coexist with Canon law, Customary law at the rural and urban levels, and Roman law.
It was only in the seventeenth century that the Common law conquered other laws when the Parliament authoritatively demanded power with regard to defining the contours of Common law and simultaneously places a check on the exercise of power by the English King. As far as the problem of the coexistence of multiple mandates flowing from the multiple state and non-state orders is concerned, the presence of the robust judiciary was sufficient to tackle this simultaneous existence of legal and non-legal mandates and their implications. Contemporarily, the Common law works in consonance with the Adversarial system for the dispute redressal procedure. This procedure mandates the presence of two opposing parties and a neutral arbiter who moderates between the two.
The jury comprised of ordinary people mulls over the facts of the case and the duty of the judge is to examine the jurisdiction and render the verdict. In such a case, it would be easy to tackle the competing claims emerging from the existence of legal pluralism with Parliament gaining supremacy with regard to the other non-state normative orders. Thus, the idea of legal pluralism can very well be accommodated within the avenue of Common law. Looking at the Common law from the lens of rule of law, it could be said that a substantial role has been given to the precedents and the judges over the codification and consolidation of laws whereas the rule of law poses conviction in the idea of separation of powers and equal distribution of powers.
As far as the principle of governance by general norms and certainty with regard to such norms is in question, given that the common law is precedent driven it thus, does not offer much compliance with the rule of law in this respect. When the basic prerequisite of the rule of law is absent, it would be senseless to consider the discourse on the remaining tenets of rule of law as given by Lon Fuller which he calls as inner morality of law. All in all, the legal regime that follows the common law tradition would be unable to achieve compliance with the rule of law, and lesser compliance makes space for the lesser robust legal system and hampers the proper functioning of law within the society.
Rather than adhering strictly to the Common law tradition, a judicious mixture of attributes from both the common and the civil law would render a legal system in substantial compliance with the rule of law. But to look at the fairer side of this, English common law has been coupled with an adversarial system of justice, such as that which is in use in both the United States and Britain is one in which the parties to a dispute are pitted against one another in a relatively brief, oral contest with the expectation that competition between the two sides will reveal the truth. 11 The plaintiff, the defendant and lawyers representing them are gathered together to present their case before a jury and a judge, who is expected to be an impartial arbiter of justice.
12 This system is classified as adversarial because of the oppositional relationship between the lawyers for the plaintiff and the defendant in the trial. 13 Employment of the common law is thus a methodology of resolving disputes rather than the application of a particular rule. 14 In this aspect offers a vigorous functioning of the legal system in discharging its functions. Without an iota of doubt, it does render a robust dispute settlement forum. ❖ LEGAL PLURALISM AND RULE OF LAW IN CIVIL LAW: Civil law emerged in continental Europe at about the same time as common law and it was made applicable to the colonies under the European Imperial powers for instance Spain and Portugal. In contrast to Common law, it is codified.
The legal tradition in England during the Medieval Age developed differently despite the fact that it had profound cultural ties with the rest of Europe, out of several historical reasons, the one that stands out was the establishment of judicial decisions as the basis for its legal tradition and the legislative decisions as the basis for Civil law. Civil law has been derived from the Latin term Ius civile which means the law for the citizens of Rome. Emperor Justinian’s compilation which concluded the Roman law where the origins of the Civil law could be marked. Certainly, Justinian decreed that his Corpus luris contained the whole law and that no reference should be made to earlier sources. 15 The idea, therefore, that the code wipes the slate clean and offers a new beginning to the law may be traced to him.
16 The law under Civil law is not as has been administered by the judges but 11 Sandra F. Joireman, "Colonization and the Rule of Law: Comparing the Effectiveness of Common Law and Civil Law Countries" [2004] Vol. 15, Constitutional Political Economy 315
12 Ibid.
13 Ibid.
14 Ibid.
15 Peter G. Stein, "Roman Law, Common Law, and Civil Law" [1991] Vol. 66, Tulane Law Review 1591
16 Ibid.
the one expounded by the professors. Civil law has grown more within the Universities than within the walls of the Courts. Civil Law, on the other hand, is markedly professorial. 17 Professors are teachers and writers. 18 They are concerned with lucidity, clarity of exposition and with the consistency of structure and terminology. 18 Thus, legal academics have largely swayed the making of Civil law. Civil is totally based on the substantive law and the procedural law, they have been codified and amended over time and again and thus, they have become comprehensive in respect of the matter that could be put for contestation before the courts, the procedure to be followed and the due punishment in case someone found guilty. The civilian system of law has historically been coupled with an inquisitorial system of practice.
The inquisitorial system is characterized by the unique role of judges who are required to organize the investigation and question witnesses in order to find the truth. The inquisitorial system is also distinguished by the written nature of the proceedings. What the judges are left to do is to apply these comprehensively laid down laws to the facts of the case and decide the matters strictly adhering to the codified and consolidated laws. But the fact that needs to be attended here is that role of the judge and the judicial decision is going to be less crucial than that of the codified set of provisions. Unlike Common law, the abolition of codified laws would render Civil law in utter disarray, thus accentuating the role of a set of codified laws. The existence of the Civil law tradition is readily apprised with the notion of Legal Pluralism and has admired its existence as well.
As Civil law emerged in Europe, its practice spread throughout Europe, thus, the significance of the customs as a source of law became immensely significant considering the fact that the European states sought to accommodate non-state normative order within their official legal systems. Civil law lays stress on the codification and the consolidation of the laws, in case of the presence of legal pluralism, it would intend to comprehensively consolidate all the state and non-state orders available within a given legal regime. Thus, thought out the early modern period, this generated a scholarly attempt to systematize scattered, disparate legal provisions and local customary laws and bring them into harmony with the rational principles of Civil law and natural law. 19
17 Supra 6.
18 Ibid.
18 Ibid.
19 Supra 6.
As far as rule of law and Civil law is concerned, the ideals of Civil law very well befit the inner morality of rule of law as expounded by Lon Fuller. It provides certainty, promulgation, and perspicuity with regard to laws which is necessary for compliance with the rule of law. But againt the law-making body has been given upper hand over the judiciary and all the rule of law requires is the supremacy of the law nits derides the idea of conferring supremacy to one of the institutions of the government over the other. Compliance with the separation of power and equal distribution of power puts a legal system at the better forefront of discharging its function.
CONCLUSION
Legal Pluralism does not pose any problem with respect to the legal system in exuding its function, all that is required unification of the non-state laws and state laws together under one comprehensive code. the idea for doing so is to confer the indigenous laws or any other customary laws their deserving place in the law by recognizing them within the laws of the official legal system. Doing so averts the situation of the coexistence of different mandates at one point in time governing the same matter and thus would in turn help in better regulation of people’s behaviour in accordance with one consolidated law. Coming to the rule of law, both legal systems have their own pros and cons, thus in such a situation what can be done is the convergence of both common law and civil law so as to offer better compliance with the principles of rule of law.
Basically, codified laws along with the robust judicial system would really put a robust legal system in substantial compliance with the rule of law. A judicious mix of certain attributes from both the Common law and Civil law would ultimately help in discharging the actual role of law in the eyes of rule of law.
REFERENCES
Ø Sally Engle Merry, "Legal Pluralism" [1988] vol. 22, Law & Society Review 869 Ø Paul Schiff Berman "Global Legal Pluralism" [2007] Vol. 80, Southern California Law Review 1155 Ø William Burke-White, "International Legal Pluralism" [2004] Vol. 25, Michigan Journal of International Law 963 Ø Margaret Jane Radin, "Reconsidering the Rule of Law" [1989] Vol. 69, Boston University Law Review 781 Ø Brian Z. Tamanaha, "Understanding Legal Pluralism: Past to Present, Local to Global" [2008] Vol. 30, Sydney Law Review 375 Ø Sandra F. Joireman, "Colonization and the Rule of Law: Comparing the Effectiveness of Common Law and Civil Law Countries" [2004] Vol. 15, Constitutional Political Economy 315 Ø Peter G. Stein, "Roman Law, Common Law, and Civil Law" [1991] Vol. 66, Tulane Law Review 1591 Ø Brian Z. Tamanaha, "The rule of law and legal pluralism in development" [2011] Vol.
3, Hague Journal on the Rule of Law 1 Ø Max Rheinstein, “Common Law and Civil Law: An Elementary Comparison" [1952] Vol. 22, Revista Juridica de la Universidad de Puerto Rico 90