<i>Applied Legal Pluralism: Processes, Driving Forces and Effects</i> By GhislainOtis, JeanLeClair, and SophieThériault, London: Routledge, 2022, 284 pp., £130.00

Can the study of legal pluralism help to inform the design of legal procedures, institutions, and practices?1 This is a fraught question. After all, legal pluralism has generally been a descriptive enterprise, not a normative one. Legal pluralists have recognized that societies consist of multiple overlapping normative communities. These communities are sometimes state based but sometimes not, and they are sometimes formal, official, and governmental, but again sometimes they are not. Pluralists have therefore defined their task principally as an exercise in thick description: cataloguing the inevitable contestation or legal hybridity that arises when multiple legal or quasi-legal systems occupy the same social space, as well as the resulting strategic interactions that occur among those navigating the various regimes.2 This is not to say, of course, that legal pluralism as a scholarly project was (or ever could be) devoid of implicit values and normative biases. Indeed, one might say that two strong normative undercurrents have always animated legal pluralism. First, legal pluralism was an attack on legal centralism, the idea that law is the sole province of the state and its formal institutions.3 Pluralists sought to undermine the assumption of state power, discovering agency and subversive opportunities among those presumed to be marginalized. As such, legal pluralism was a way of critiquing the power of the state and even at times celebrating resistance to state hegemony. Second, legal pluralism often had an implicit pro-local bias, particularly in its emphasis on forms of resistance to colonial state hegemony. Perhaps echoing cultural anthropology's more general celebration of the local, legal pluralists tended to make the local, the Indigenous, and the anti-colonial the heroes of the narrative. In addition, legal pluralism represented an important alternative to liberal legalism. Pluralists, of course, are far more likely than traditional liberals even to notice the pluralism of legal and quasi-legal norms that exist apart from the state. After all, most liberal theorists begin their analysis with the state: how it is formed, how it is justified, and the philosophical underpinnings for its operations. Non-state actors are surely important to this inquiry in that they clash with the liberal state, and of course the state, under liberalism, should often reach positions of accommodation with these non-state actors. However, what is being described is fundamentally the state and how it views and treats the non-state. By contrast, pluralism assumes that the relevant subject of inquiry is the entire range of legalities that course through the everyday experience of people. This means that the lived reality of communities and day-to-day perceptions of legitimacy and efficacy are far more important than philosophical models. In addition, a pluralist perspective is more likely to see individuals and groups, rather than just the state, as having agency and therefore playing crucial roles in navigating the interaction of normative systems and using those systems strategically. For example, in the classic colonial interaction, a quasi-liberal, state-based legality was layered on top of an Indigenous legal system. A liberal theorist would focus on the newly imposed system and on how it either accommodated or refused to accommodate local communities. By contrast, legal pluralists would observe that the colonial system rarely, if ever, wiped out the Indigenous system altogether, and they would then focus on the interaction of these legal systems. However, even this implicit correction to liberal legalism has usually been framed purely in descriptive terms. ‘Here is the reality of how multiple legalities actually operate on the ground’, legal pluralists repeatedly insist, echoing, while expanding, the classic law-on-the-books/law-in-action dichotomy of socio-legal scholarship more generally. Pluralists have usually resisted the ‘pull of the policy audience’,4 seeing pluralism as a reality to be understood, not as an invitation to take a normative position about how legal systems should be designed. Yet, it has always struck me that legal pluralism might also speak normatively.5 After all, we need not only study the inevitability of legal pluralism and how legal systems respond to that pluralism. We might also ask: how might legal and quasi-legal systems better respond to the inevitable pluralism in which they operate? How might institutions, procedures, and discursive practices be created that would help to mediate the encounter between Self and Other? And how might the study of actually existing legal pluralism help us to design systems that would handle that mediation process better, that would better structure dialogue across difference, and that would encourage decision makers to be more self-conscious about wielding their own inevitably hegemonic power? In Applied Legal Pluralism: Processes, Driving Forces and Effects, Ghislain Otis, Jean LeClair, and Sophie Thériault open up possibilities for moving from the ‘is’ to the ‘ought’, even while they themselves eschew a strongly normative stance. True to the word ‘applied’ in the title, the authors train their sights specifically on the question of how different legal systems attempt to confront and actually manage a pluralist reality. Thus, the project usefully catalogues a variety of specific strategies that both settler-colonial legal systems and Indigenous legal systems use to mediate the gulfs between them.6 And while the authors are careful not to argue for or against any particular set of strategies, their thorough empirical work does shift the gaze from simply recognizing the pluralism to inquiring about the substantive norms and procedural processes that manage pluralism. Accordingly, their analysis supports the possibility that legal pluralism can function as a useful normative project, rather than only an essential descriptive one, even though the authors choose not to pursue that approach. Just as significantly, Applied Legal Pluralism expands the frame of research beyond simply examining how the settler-colonial state either accommodates or fails to accommodate non-state norms and procedures. Here, in addition, the authors study Indigenous systems and the degree to which those systems try to incorporate or accommodate state norms or procedures. This is an important corrective to the liberal bias in favour of focusing on the state that often creeps into even many pluralist analyses. Applied Legal Pluralism builds principally from case studies involving the interaction of state and non-state legal systems in four African countries (South Africa, Burundi, Côte d'Ivoire, and Zambia), as well as Canada, Romania, and the Solomon Islands. These studies are rich in detail and cannot adequately be summarized in a short review essay. Suffice it to say that they reward a close read, particularly because they look at the strategies that occur both within state and Indigenous legal systems. The descriptions are nuanced, thoughtful, and self-aware. From these case studies, the authors identify two broad types of processes for managing legal pluralism, which they call ‘management by articulation’ and ‘management by adaptation’ (pp. 24–25). According to the authors, ‘articulation takes place when the managing system acknowledges the existence of another system … and gives that system some measure of direct legal effect’ (p. 25). By contrast, ‘adaptation takes place when the managing system, as a result of its proximity with another system, adapts and transforms yet does not recognize the [other] system as a binding source of principles, rules, or processes’ (p. 25). And of course, a third strategy involves the non-management of legal pluralism, in which a ‘system legally disregards the very existence of the other, so that, from the former's point of view, no de jure consequences may flow from the latter’ (p. 25, emphasis in original). In practice, many legal systems deploy a combination of all three approaches in responding to proximity with another system. The authors then show, in gratifyingly granular detail, the many ways in which both state and Indigenous legal systems deploy these three strategies. For example, articulation can occur when one system explicitly incorporates norms or processes of the other system (pp. 26–27), as when the South African Constitution directs that state courts must apply customary law in many types of legal disputes (pp. 28–29). However, articulation can also occur when a system absents itself and leaves the other system to operate within a limited zone of autonomy (pp. 44–45). For example, Roma legal authorities sometimes rely on state judges (pp. 45–46), and in Burundi, state and non-state justice systems may refer citizens from one system to the other (p. 46). With regard to adaptation, the authors note that sometimes ‘one system is inspired by another system's methods, processes, or solutions and adapts them to its own context and legal culture’ (p. 55). This too can go in both directions, as, for example, in the Solomon Islands, where state law has incorporated principles, rules, and sanctions from non-state customary law (p. 56), or Romania, where Roma law is moving closer to Romanian criminal law (p. 58). However, adaptation can also take the form of what the authors call ‘endogenous modulation’ (pp. 60–62). Here, one system does not choose to imitate another system, but instead alters its own system to stave off possible encroachment from the other system. For example, Roma practices involving the marriage of minors were altered so that such practices would not be challenged under Romanian child protection law (p. 61). In each of the case studies, the authors – all of whom themselves operate in Western state-centric contexts – work admirably to view legal pluralism not only from the perspective of the state system, but from the perspective of the non-state system as well. This is an important effort. As the first chapter of the book observes, many analyses of legal pluralism, even those that seek to promote Indigenous legal systems, ‘paradoxically express their pluralistic credo through the prism of state action’ (p. 22). Such an approach, the authors suggest, not only limits the range of viewpoints about the pluralist encounter, but also tends to shift the focus to ways in which state law can be made more palatable to the non-state community and thereby increase the state’s hegemonic power. This can be seen, the authors argue, ‘in international instruments that require States to validate Indigenous law in order to circumscribe, so as to better legitimize, the sovereignty of the States’ (p. 22). Thus, the state may increase its power by adopting aspects of Indigenous law and subsuming them into its own legal system. How do these systems have effect today, independent of the State? Do these systems acknowledge legal pluralism? How do they perceive their relationship with State law? What processes have they developed to manage legal pluralism, and what are the internal consequences of those processes? What impact does the State's attitude have on the effectiveness or inherent validity of the non-State legal order? (p. 22) This approach can usefully turn even noble impulses aimed at respecting Indigenous law on their head. For example, though the book does not discuss legal pluralism regarding tribal law in the United States (US), some of the book’s observations reminded me of the debate among tribal law scholars and advocates regarding the extent to which tribal court decisions in the US should be recognized by state and federal courts.7 At first glance, it might seem as if the most respectful approach to judgment recognition would be to require non-tribal courts to recognize and enforce the judgments of tribal courts automatically, by extending the scope of the Full Faith and Credit Clause of the US Constitution8 and its accompanying statute9 to apply to tribal court judgments just as it has long applied to the enforcement of sister-state judgments. After all, this approach would mean that state-based courts would need to grant automatic recognition to tribal court decisions, enforcing them as if they were their own. Yet, some tribal advocates reject the Full Faith and Credit approach precisely because it treats the tribal court as if it were just another state within the US. For some tribal sovereigntists, the tribes are explicitly not part of the US but a separate sovereign altogether. Instead, they advocate for the same judgment recognition regime that US courts use when analysing the decisions of foreign governments rather than sister states. Thus, a regime that affords less automatic recognition might be seen to be more respectful of the tribes’ status as separate sovereigns. Alternatively, perhaps that is a spurious symbolic type of sovereignty best discarded in favour of giving tribal court judgments more extended enforcement power. These are the debates opened up by viewing the pluralist interaction from the perspective of both the state and the Indigenous systems. who argue in favour of the official recognition of non-State legal orders often fault States for their lack of receptiveness or their hegemonic attitudes. In reality, however, concern for self-preservation makes non-State systems even more reluctant to receive State law. (p. 227) Understanding legal pluralism as a bi-directional interaction also allows us to see that the decision of a legal system to recognize or develop ways of accommodating another legal system does not, in and of itself, eliminate or even reduce legal pluralism. That is because the decision to recognize or accommodate is always made within one legal system; it does not necessarily impact the other legal system at all. As the authors put it, ‘autonomous systems are not ipso facto modified by the position taken by other systems towards them’ (p. 229). As a result, if a state creates a hybrid regime that incorporates Indigenous elements, that does not necessarily result in changes to the Indigenous system at all. This conclusion implies that we need ‘a little more modesty and realism in States … [that] sometimes claim to be “developing,” “unifying,” or even “modernizing” non-State law’ by creating hybrid legal elements within the state system (p. 230). Likewise, creating such hybrid systems does not eliminate the complexity or contestation that require individuals to navigate the legal uncertainty of pluralism. The other system continues to exist, after all. And the creation of a hybrid system might even increase the complexity by adding a third system that operates within a system, as when a state legal system creates customary courts. In such circumstances, the authors conclude, ‘the dual regime within the State system co-exists with the entirely non-State body of law that also persists’ (p. 230). Finally, and perhaps most controversially, the authors argue against the claim that ‘State recognition is a process that valorizes and protects Indigenous legal cultures, since in actual fact it places them under tension as autonomous extra-State realities’ (p. 231). This is because ‘hybrid regimes enforced by state “customary” courts compete with non-State law’ (p. 231). As a result, such hybrid regimes could actually weaken non-state legal institutions and processes by creating an alternative system. Or, as noted above, such regimes might help to legitimize the state system, improving its attractiveness and thereby helping it to attain a more dominant position versus the Indigenous system. As the authors argue, ‘State law, made more appealing as a result of a hybrid regime that lets Indigenous legal cultures occupy a certain place in the official law, may thus secure a more advantageous position in the competition between systems’ (p. 231). This last argument surfaces what might be thought a limitation of the analytical frame of the book, as well researched and thoughtful as it is. The authors view the pluralist interaction always through the lens of power dynamics and competition. Thus, attempts by the state to incorporate Indigenous legal elements are viewed principally as efforts by the state to secure or expand its hegemonic power. Likewise, if Indigenous systems recognize or incorporate elements of state systems, that is merely seen as capitulation to the power of the state. Such a framework is surely correct to some degree, and of course power differentials are an extremely salient part of understanding the pluralist interaction of systems. However, it is also reductivist (and sometimes debilitating) to analyse efforts to manage legal pluralism only through the rubric of power differentials and competition. After all, strategies for managing legal pluralism can also result in increased opportunities for voice and agency for people and perspectives that were previously unheard in the legal system. And that increased voice and agency can, in turn, lead to more interaction among perspectives, more dialogue across difference, changes in attitudes, and, over time, further changes in the legal systems themselves. Power dynamics are not static, after all, and a change to a legal system that better accommodates legal pluralism can itself cause subtle shifts that alter dynamics of power over time. To be fair, nothing in Applied Legal Pluralism suggests that such shifts in power are impossible. However, as discussed above, the authors do adopt a sceptical attitude to any efforts by state-based legal systems to incorporate a role for Indigenous legal culture, and they also tend to view any efforts by Indigenous systems to accommodate state law as forced capitulation to the power of the state. All of which brings us back to the question of whether the study of legal pluralism can ever actually help to inform the design of legal procedures, institutions, and practices in order to make them better, and whether those procedures, institutions, and practices can ever help to increase opportunities for voice and agency, mitigate power differentials, improve dialogue and understanding, and quell conflict among incommensurate systems. If so, then we could imagine such procedures, institutions, and practices actually changing facts on the ground over time and possibly even helping to reformulate the hegemonic terms of the legal relationships at play. The authors of Applied Legal Pluralism are surely right to be sceptical about such efforts. And they are also right to point out that any such efforts to manage legal pluralism will always take place against the backdrop of existing power dynamics, even if they could possibly help to alter those power dynamics over time. As social scientists doing primarily descriptive analysis, that is all they need to do, and in this book they do it very well indeed. However, perhaps the ‘pull of the policy audience’ is not always a bad thing. Law cannot change everything about society, of course, and power differentials will always exist. But perhaps applied legal pluralism can also mean that sometimes legal processes or legal institutions could be created that might manage pluralism better than other processes or institutions. And those processes and institutions might therefore be worth trying even if they do not fully address all of the power disparities at play or give full voice to all possible constituencies. That would be a legal reformist project, of course, and not really a social science one. Yet, it is a sign of the strength of this book that it both adheres to strong social science methodology while also suggesting other paths that might be taken using this research – paths that might be taken by other scholars with other scholarly aims.

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