Scientific versus folk legal pluralism

Abstract

Three decades ago I published “The folly of the ‘social scientific’ concept of legal pluralism” (1993) (hereinafter “Folly”). Reading this essay today brings me a rush of embarrassment. The article is obnoxious in tone, overconfident, and less than fully informed. At the time, I had recently entered academia, and launched an attack against what I thought was the orthodoxy of legal pluralism. Today, if it were possible to re-write the piece and remove its vitriol, I would. Mea culpa. Moreover, my unrestrained critical blast misled many readers to think that I flatly rejected legal pluralism and opposed the very notion of non-state law. But that was not my position. In the conclusion, I stated: “Clearly there is a compelling intuitive impulse to describe as law or law-like certain dispute resolution institutions and norms found in pre-state societies and in post-colonial societies where the power of the state is weak and indigenous institutions are dominant [....]. [T]hese norms and institutions can and should be called law or law-like” (211; emphasis added). In my previous work as an Assistant Attorney General in Yap, Micronesia, I witnessed first-hand a thriving system of customary law that handled a range of legal matters, often more efficaciously than the state legal system (Tamanaha 1989). What “Folly” criticized was the social scientific concept of legal pluralism. This essay elaborates the contrast between scientific legal pluralism and folk legal pluralism. This is a fitting topic to mark the fortieth anniversary of the Journal of Legal Pluralism because it addresses core issues taken up by seminal pieces published in the journal over several decades (Galanter 1981; Griffiths 1986; Woodman 1998; von Benda-Beckmann 2002). The scientific versus folk distinction was drawn by John Griffiths in an 1984 essay that articulated ideas which informed his enormously influential article, “What is legal pluralism?” (1986).