by Emmanuel Melissaris. Burlington, VT and Farnham, England: Ashgate, 2009. 178pp. Hardback. £55.00/$99.95. ISBN: 9780754625421.
Reviewed by Roger Cotterrell, Department of Law, Queen Mary University of London, UK. Email: R.B.M.Cotterrell [at] qmul.ac.uk.
It may not yet be true that we are all legal pluralists now. Nevertheless, the concept of legal pluralism – the idea that different kinds of legality co-exist in indeterminate relations in the same social space – is much discussed by legal researchers. An important stimulus for this growing interest lies in the usefulness of legal pluralist theories for those who wish to detach law from any necessary relation to the state. Emmanuel Melissaris, a legal philosopher teaching at the London School of Economics, is among this company. His book, which seeks to theorise the idea of legal pluralism, opens with a brief reference to Islamic Shari’a law in the UK to ask: if all law is state law, or authorised by the state, what is the status of Shari’a as a form of legality? The issue can be generalised: are there forms of legal experience that are highly valued by particular populations but that the state cannot or will not recognise?
In fact legal pluralism has often been discussed in the light of multicultural legal experience, as well as in the context of many kinds of transnational law (law intended to operate across nation state borders) that are now developing and competing for jurisdictional space. Most literature on legal pluralism has been produced by sociolegal theorists or legal anthropologists, and it grounds itself in the sheer empirical diversity of contemporary legal experience – from conflicts of state law and religious or customary law to the interactions of World Trade Organization law, European Union law and national legal systems.
Melissaris’ book is different, however, and more abstract in focus. He aims to provide ‘a philosophical grounding of a social-theoretical approach’ to law (p.4). While he argues that legal theory must now combine philosophical and sociological approaches, and his text draws on a wide range of theory in sociology of law and recent legal philosophy, essentially this is a work of legal philosophy. It addresses the time-honoured jurisprudential issue ‘What is law?’ but in a new context in which, in Melissaris’ view, familiar legal philosophical assumptions no longer hold. Thus, law cannot be understood (as by H. L. A. Hart) from an ‘external’ (observer’s) viewpoint (which, in fact, merely generalises an ‘internal’ view of the legal experience typical of certain kinds of legal systems). Nor is a Dworkinian ‘internal’ understanding of law adequate, because it is unable to see beyond the parameters of its own parochial legal experience. Even critical legal theories fail insofar as they attack orthodox state-focused understandings of law without trying to replace these [*775] with more appropriate conceptualisations of law.
The book’s key argument is that law cannot now be understood solely through state-law experience, which distorts the range of actual and possible legalities. And the state-law concept cannot just be replaced with another uniform concept of law that treats it as existing apart from the state. That would be to impose a single view of legality on diverse kinds of legal experience. Legal pluralist ‘empiricist-positivist’ approaches (p.28) that purport to set out new ‘objective’ indicia of the legal cannot represent the variety of subjective legal experience. That experience is merely distorted or rejected if any universal theory of law is imposed on it. Furthermore, the whole idea of legal pluralism is denied by postulating some single uniform legal conception.
Where then does this leave us? Is a pluralist legal theory possible? Melissaris is sure that it is; indeed, for him, legal theory must be a theory of legal pluralism; any other approach denies law’s reality. The aim is to strip away from the legal all those institutional elements that are merely contingent characteristics of state law. Law resides in shared normative experiences entailing ‘presuppositions on the part of participants concerning their ability in common to transform the world through their normative commitments’ (p.109). These subjective normative experiences are historically situated; they reflect particular understandings of space and time; they are beliefs rooted in specific contexts of co-existence or social interaction; and they combine the empirical and the normative. So law is always sociologically-rooted in particular contexts and in the interactions of specific social networks.
However, if this were all, there would be no way to speak of legality as an idea that traverses these different contexts and subjectivities. There is also, according to Melissaris, a minimal ‘universal sense of law’ (p.5). Speech act theory, on which he relies, suggests the centrality, in the legal, of performative acts that usually give rise to institutional facts; law is basically about the transformation of words into deeds, norms into facts, and vice versa. But because Melissaris is dealing with such an irreducibly foundational level of legality – an extremely ‘thin’ conception of law that can only be fleshed out in particular contexts by particular communities – the discussion becomes opaque and very vague. Mere glimpses of this foundational sense of law appear throughout the text. We are told that ‘some degree of objective rightness’ is built into it (p.56), Kantian norms of autonomy and respect for every moral agent are relevant (p.56), and the development of the legal sense in any context demands participation, democracy and autonomous agreement (pp.58, 71). Law is the product and expression of communal networks of social interaction.
The striking result of the analysis is that state law may or may not be truly law, or may be law only in part, because of its ultimate reliance on force (p.59) and its characteristic blindness to basic criteria, suggested above, that define the necessary bedrock of legality (pp.55, 124). Hence Melissaris suggests not only that legal theory must recognise a different, far more diverse and fluid [*776] legal reality from the one it has traditionally portrayed, but that law’s ties to morality (while it retains its distinctiveness from the latter) require a more critical view of the state’s manipulation of legal forms. This kind of critical thrust also comes across in his condemnation of orthodox legal theory as an expert culture privileging official, professional priorities and juristic views, and consistently devaluing lay legal experience; and in his argument that law, in the broad sense outlined in the book, should be seen as ubiquitous – a part of all aspects of social life – and, as such, essentially a general resource for organising meaningful co-existence rather than a coercive instrument of control.
The book is sophisticated and very thoughtful, but undoubtedly not an easy read. Some sociolegal scholars attracted by the promise of this text to integrate legal pluralist perspectives into legal theory will be disappointed by the lack of empirical detail of contemporary regulatory pluralism. Discussion here is pitched at a very high level of abstraction in trying to address the question of what the concept of law can be taken to be if the challenges of legal pluralism are accepted. The book’s orientation is explained by the fact that the author has entirely avoided the usual sociological approach to legal pluralism, which is to specify a provisional model (or ideal type) of the legal as a basis for organising, describing and comparing the range of proliferating normative regimes or normative aspirations that are increasingly referred to under some such labels as ‘global legal pluralism’ or ‘cultural diversity and law’ (see e.g. Snyder 2002; Berman 2007; Grillo, et al 2009).
Early in his book, Melissaris makes some seemingly critical comments about the scope of sociological inquiry in relation to conceptual analysis: a sociologist aiming at description can, he says, only ‘observe and record regularities, which she will have already picked out by employing a pre-selected concept. . . . In turn, observation will help clarify and refine the concept…. Thus a descriptive sociologist will be able to raise rather modest, context-bound and indexical claims’ (p.9). The legal philosophical project, by contrast, would be to try ‘to account for the concept of law in an a-historical, a priori manner,’ which cannot be done by description and then abstraction (p.9, emphasis in text). Melissaris is clearly attempting to hold on, in some way, to this legal philosophical project of clarifying the concept of law in general. He considers it a necessary project to underpin any sociological enterprise of mapping developing legal pluralism in the form of regulatory regimes beyond state law; hence the search for a ‘philosophical grounding of a social-theoretical approach.’ A century ago Hans Kelsen declared a parallel dependence of sociology of law on a philosophical-juristic conceptualisation of law (see e.g. Van Klink 2009). But now, as then, the claim of dependence may be false (in fact a reversal of the real situation) – and a misrepresentation of the tasks of both sociology of law and legal philosophy.
Reflection on this book’s conclusions shows why. Melissaris’ ‘universal sense of law’ is, on his own admission, very ‘thin’ indeed, and rather obscure and hard to pin down, so much so that this may indicate two basic flaws with his project. The first is that, as a practical [*777] matter, it may simply be premature or unnecessary to try, however tentatively, to suggest ‘the concept of law in an a-historical, a priori manner;’ it may be more valuable to map and explore the diversity of regulatory regimes using merely provisional concepts of the legal that are sufficient to organise specific projects of empirical inquiry. The ‘global legal pluralism’ associated with the increasingly intense interaction, competition and conflict between international, transnational, national, and intranational regulatory regimes is at present both immensely rich and hugely diverse. It is unlikely to shed these characteristics in the near future. So a conceptualisation of this vast regulatory universe surely needs, in itself, to be much richer and fuller, with far more explanatory power, than Melissaris’ universal sense of law; but it should also be purely provisional, and empirically-oriented to rapidly changing and developing regulatory patterns and regimes.
In other words, empirically-focused, contextualised theory, I suggest, is more important than aspirations to portray universals. Sociology of law, as the basic inquiry here, surely needs philosophical assistance along the way. But a fundamental philosophical conceptual underpinning is not needed to make possible the projects of legal sociology in exploring legal pluralism; such projects are already in progress. Nevertheless, Melissaris’ effort to think out an irreducible basic idea of law not dependent on any of the orthodox institutional supports of state law is very stimulating.
A further possible flaw in the project is that its two contrasting aspects may be ultimately incompatible: One aspect involves recognising that legal theory’s task is to participate in and mediate a very open conversation about the nature of legality between communities (or between networks of social interaction – Melissaris rejects any strong sense of community). Legal theory must, therefore, discard its ‘expert culture’ stance and recognise that it is involved in an enterprise of mutual learning from the innumerable subjective experiences of legality in different contexts. The other aspect of the project, however, is to hold to some overall, ultimate (if minimal) universal view of the legal which legal theory can then use as an ‘appellate tribunal’ to test discursively the ‘self-understandings, beliefs and normative commitments’ of conflicting legal orders (p.77). Does legal theory then merely modestly engage in conversations across different normative experiences of legality; or does it still seek to engineer a dominant master narrative of legality to unify the field of the legal?
This uncertainty cannot be removed without confronting a further issue not adequately addressed in this book: what is a legal theory of legal pluralism for? Despite Melissaris’ sensitive discussions of sociolegal theory, his outlook remains that of a legal philosopher. His implicit reason for grappling with legal pluralism as a conceptual problem for legal theory seems to be to address the challenge that legal pluralism poses for legal philosophy’s ability to continue to ponder its traditional central question: ‘What is law?’ The project, then, is surely to save legal theory’s established philosophical universe of conceptual inquiry in the face of challenges that threaten to destabilise it completely. But [*778] sociolegal theorists, for whom conceptual inquiries about law are only part of a larger project of developing social explanation, may be much less interested in Melissaris’ central concerns here.
At the same time, it may not be as clear as he thinks that orthodox Hartian or Dworkinian theory cannot be adapted to apply to non-state forms of law, even if the authors of these theories themselves assume a state-law focus in them. For example, the ‘officials’ who play such a major role in Hart’s concept of law may not need to be state officials; and the ‘community’ that creates its own law in Dworkin’s interpretive theory does not need to be understood (as Dworkin understands it) as the political community of a nation state. So the attack on legal philosophy may not need to be quite as radical as Melissaris thinks if the aim is to harness it to projects of provisional social explanation rather than to continue to search for a definitive conceptualisation of law.
My conclusion, then, is that this very thought-provoking, original and ambitious book skews its inquiry too much towards an assumed need to save certain traditional legal philosophical projects, seen as fundamentally threatened by legal pluralism. In so doing it perhaps neglects more urgent and less parochial concerns that might guide theories of legal pluralism – for example, how conflicts of authority between different legal orders may be understood and usefully addressed; how different forms of transnational regulation may be provisionally categorised and compared to facilitate more orderly relations between them; and how empirical sociolegal inquiries about regulatory regimes might locate those regimes in relation to larger networks of community and the diverse regulatory environments in which they exist.
Nonetheless, Melissaris’ book deserves to be judged in relation to its own project, not others that could be chosen. In pursuing its legal philosophical ambition it provides a wealth of insightful, scholarly and wide-ranging discussion. It deserves to be read by anyone interested in the now vitally important task of exploring the nature of legal pluralism as a contemporary phenomenon, and as a key organizing idea for current theoretical inquiries about law.
Berman, Paul S. 2007. ‘Global Legal Pluralism’. SOUTHERN CALIFORNIA LAW REVIEW 80: 1155-1237.
Grillo, Ralph, Roger Ballard, Alessandro Ferrari, André Hoekema, Marcel Maussen and Prakash Shah (eds). 2009. LEGAL PRACTICE AND CULTURAL DIVERSITY. Burlington, VT and Farnham, UK: Ashgate.
Van Klink, Bart. 2008. ‘Facts and Norms: The Unfinished Debate Between Eugen Ehrlich and Hans Kelsen’. In LIVING LAW: RECONSIDERING EUGEN EHRLICH, M. Hertogh (ed). Oxford: Hart, pp. 127-55. [*779]
Snyder, Francis G. 2002. ‘Governing Globalisation’. In TRANSNATIONAL LEGAL PROCESSES: GLOBALISATION AND POWER DISPARITIES, M. Likosky (ed). London: Butterworths, pp. 65-97.
© Copyright 2009 by the author, Roger Cotterrell.