Normative and Descriptive Legal Pluralism

Michael Green

Fernanda Pirie’s Beyond Pluralism: A Descriptive Approach to Non-State Law offers a nuanced and well-reasoned assessment of the movement — among those we can call legal pluralists — to expand the concept of law to include non-state forms of social ordering. Legal pluralists are a heterogenous group¹ and it is dangerous to make any generalizations. But Pirie has certainly identified a theme among some legal pluralists. She has two main arguments, one critical and the other constructive.Her critical argument is that legal pluralists’ conceptual project is largely motivated by normative concerns — “to counter colonialism and its legacies, and to highlight ways in which states disregard the rights and interests of Indigenous people” — that are independent of the descriptive aims of legal theory, which is “simply to clarify what law is and does.” (P. 2.) Her constructive argument is to offer — as an alternative to the pluralists’ normative concept of law — her own descriptive concept, based on a sophisticated method of conceptual analysis. Like the pluralists’ concept, her concept encompasses non-state law, but in a more limited fashion.

Let me start by offering my own (admittedly lengthy) version of the critical argument, before adding her nuance. The law of the United States has done a bad job accommodating Native American forms of social ordering. But broadening the concept of law won’t change American law practices. All it will do is redescribe as law the forms of social ordering that American law practices ignore. Indeed, there is reason to believe that conceptual reform would frustrate the pluralists’ goals. To reform American law — or even to identify it as a set of standards to be ignored or resisted — one needs to focus on what is, in fact, American law. The pluralists’ broader concept of law interferes with that focus.

The heart of the error Pirie identifies is the assumption that a general concept of law (as used by philosophers or social scientists) is important to those engaged in law practices, in the sense that judges and other officials seek to enforce the standards that fall under the concept. If they did, then reform of the concept would alter their practices. But they don’t. Sure, officials generally enforce what is, in fact, law (according to a general concept of law). But they don’t enforce it because it’s law. To quote Raz:

Suppose we are discussing the putative law established by some government in exile over a country which it does not control, or where its control is minimal, and suppose that its judges discover that by the correct legal theory their system is not a legal system, for it lacks the necessary characteristics of control. This may make them decide to resign, or rebel, though I can see little reason why it should. The point is that their duty (under the system in whose courts they sit) is to judge in accordance with the rules of that system, and it matters not at all whether these rules are legal ones…²

To be sure, there is also a system-specific concept of law that would be used by the judges Raz describes. They would, for example, draw a distinction between the rules of their system, which are law, and facts that are relevant in applying those rules.³ But they would not regulate their adjudication to conform to some general concept of law, a concept that is intended to identify the law of various communities.

Legal pluralists are not the only ones to mistakenly think a general concept of law is relevant to law practices. The mistake pops up constantly in the philosophy of law. It stands behind Ronald Dworkin’s so-called semantic sting argument against H.L.A. Hart.⁴ (The quotation from Raz is taken from a discussion of Dworkin.) And positivists can make the mistake just as much as natural law theorists. Consider the criticism that legal positivism encouraged German jurists to enforce Nazi law.⁵ Let’s assume that the critics are right: German jurists reasoned (roughly) as follows: “The Führer’s will is law [according to positivism], therefore we ought to enforce it.” The critics argue that the solution is a different concept of law. But that simply repeats the German jurists’ error of treating a general concept of law as relevant to law practices. The truth is the German jurists’ legal inference is invalid even under a positivist theory of law. “X is law [according to a general concept of law], therefore we ought to enforce it” was not a correct inference under German law practices at the time. (Indeed, it is not a correct inference according to the law practices of any legal system that has ever existed.) It was not German law practices to enforce law (under a general concept of law) but to enforce the Führer’s will.⁶

There is one area (near and dear to my heart) where a general concept of law is somewhat relevant to law practices, namely choice of law — that is, choosing standards for cases that implicate foreign jurisdictions. Indeed, the term “choice of law” suggests that a general concept of law is essential to the enterprise. In many ways the term is misleading — it is often more accurate to say that a standard borrowed from a jurisdiction’s law is applied, and the choice-of-law inquiry is far more complicated than simply identifying and applying standards that fall under a general concept of law. But these (and other) qualifications aside, choice of law is indeed one area where a general concept of law is employed in law practices.

Nevertheless, this limited relevance of a general concept of law is a contingent fact about those practices. Jurisdictions could have choice-of-law (or, more accurately, choice-of-standard) rules that don’t use the concept at all. It is a state’s law practices, not a concept of law, that leads the state’s courts to choose state law over non-state forms of social ordering. Just as the problem in Nazi Germany was German law practices, not the positivists’ concept of law, so the problem that motivates the pluralists’ conceptual project is the law practices of current states, not a state-centric concept of law.

To repeat, choice of law aside, legal officials do not employ a general concept of law in their law practices. So who does use such concepts? Private citizens, sometimes. But, unsurprisingly, they are most relevant for those whose job it is to study the law of various communities — such as law professors, historians, sociologists, and anthropologists.

Now for Pirie’s nuance. She recognizes that there is a place for what the philosopher Sally Haslanger calls “ameliorative” conceptual projects, which aim to “enhance our conceptual resources to serve…critically examined purposes.”⁷ Concepts serve our needs, and an ameliorative approach offers a new stipulation of a concept’s content so it will better align with what our needs should be. (P. 8.) Assume states’ choice-of-law rules have been reformed to select non-state forms of social ordering just as often as they select state law. If so, the general concept of law used in choice of law might evolve to incorporate the non-state standards. That’s a charitable reading of the legal pluralists’ conceptual project: the concept of law they offer is one that would better serve these new law practices. But it is also possible that a general concept of law would be abandoned as irrelevant to conflicts cases. What were once called choice-of-law rules would now be called choice-of-standard rules. In any event, such an ameliorative project remains different from determining how general concepts of law are currently used.

One might think that once our minds are set on identifying the content of our current general concepts of law, the primacy of state law will once again rise to the fore. But now for the constructive part of Pirie’s argument. Defaulting to state law would uncover what Haslanger calls our manifest concepts — the concepts we think we are currently applying, relying on abstract intuitions. If we ask people what law is, they’ll start talking about state law. But such intuitions are unreliable. To determine our operative concepts of law, we need to use what Haslanger calls a “descriptive” approach.

Haslanger relies upon theories of semantic externalism that were originally used for natural kind terms — to explain how “water” can mean H₂O, even though our manifest concept might be something like potable, colorless, odorless liquid. She extends this semantic externalism to social kind terms like race. Those who dismiss social constructionist accounts of race as changing rather than capturing the concept of race, she argues, are relying upon the manifest concept of race.

Pirie uses the same method concerning law. Although capturing the social kind that is law will not involve the same methods as identifying natural kinds, it still proceeds through empirical engagement — through the application of the concept to concrete cases. Pirie is an anthropologist, and it is truly refreshing to see actual examples of non-state social ordering. Engaging with these examples, she argues that what helps identify an item’s status as law is not its function: to resolve disputes and maintain social order.⁸ Law should instead be identified by its form. She calls this form legalism — the use of general and impersonal rules that are divorced from the concrete social relations within which the disputes arise. ⁹ She points to sophisticated methods of dispute resolution in a Tibetan village that are not legalistic and other Tibetan tribesmen with highly legalistic standards that were oddly divorced from the practicalities of mediating conflict. And she argues that the motivations to adopt legalism can be independent of the goal of guiding behavior and resolving disagreements. In the Tibetan tribesmen’s case, the law arguably served as a symbol of tribal integrity.

Whether Pirie’s conceptual project has succeeded, according to the descriptive method she employs, is tied to whether her concept is supported, in a holistic manner, by concrete anthropological judgments. Although her focus on form over function seems to me to capture something important, I’m no anthropologist and so can make no credible assessment of whether she has captured the social scientific kind that is law. But if she has, her approach opens up fascinating questions concerning state legal orders, including which of their norms are law (in this social scientific sense) and what role states’ attachment to legality plays.

My positive response to her article is from a philosophical perspective. I think her critical argument against legal pluralists’ normative conceptual project is on the money. Same for her sophisticated approach to conceptual analysis. I also think greater exposure to a detailed social scientific concept of law is healthy for legal philosophers, for it can motivate them to clarify the relationship between the social scientific concept and the concept of law they investigate — the one that generates theories of law like positivism, Dworkinian interpretivism, the moral impact theory, and Kelsenian non-reductivism.

Thanks to Brian Bix, Fernanda Pirie, and Andrew Halpin for helpful comments.

1. See the helpful introduction in In Pursuit of Pluralist Jurisprudence 1-19 (Nicole Roughan and Andrew Halpin eds. 2017).
2. Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason, 84-85 (2009).
3. Thanks to Andrew Halpin for encouraging me to clarify this point.
4. Ronald Dworkin, Law’s Empire 45–46 (1986). See Michael S. Green, Dworkin v. The Philosophers: A Review Essay on Justice in Robes, 2007 Univ. of Ill. L. Rev. 147; Michael S. Green, Dworkin’s Fallacy, Or What the Philosophy of Language Can’t Teach Us about the Law, 89 Va. L. Rev. 1897-1952 (2003).
5. Gustav Radbruch, Statutory Lawlessness and Supra-Statutory Law (1946), 26 Oxford Journal of Legal Studies 1 (2006) (trans. Bonnie Litschewski Paulson and Stanley L. Paulson); Lon L. Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, 71 Harv. L. Rev. 630 (1958).
6. Of course, these German jurists might be making a moral inference: “X is law, therefore we ought (morally) to enforce it.” So understood, it is also invalid. It is false that officials have a moral duty to enforce all standards that are law. There is a reason that most philosophers of law are philosophical anarchists: the fact that something is law does not give one a moral reason — even a pro tanto reason — of obedience. See William A. Edmundson, State of the Art: The Duty to Obey the Law, 10 Legal Theory 215 (2004). It is considerations that are contingently associated with law that give us whatever moral reason for obedience we might have. To be sure, philosophical anarchists’ arguments are directed to law’s subjects. But they can be extended to judges too. See Michael Steven Green, Leiter on the Legal Realists, 30 Law and Phil., 381, 393-400 (2011).
7. Sally Haslanger, What Good are our Intuitions?, 106 Proceedings of the Aristotelian Society, Supplement 89 (2006).
8. She argues persuasively that the legal pluralists’ concept of law remains a functionalist one (Pp. 16-17).
9. For more, see Fernanda Pirie, The Anthropology of Law (2013).