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LEGAL PLURALISM

Existence of “multiple systems of legal obligation…. within the confine of the state”

Characteristic – more than 1 legal system applied in one country

Emergence

 Challenges legal centralism – law is the product of a state and owned by a state
 Leopold Popsil – legal pluralism is a reality; legal centralism is a myth as there are
functioning subgroups. Conversely, every functioning subgroup of society regulates
the relations of its members by its own legal system.
 Why Leopold Popsil says so? – Because of colonization
 Began in the 17th century – expansion of the civil law and common law system
outside Europe and reached its greatest extent in the 17th and 20th century
 Laws with which “western” laws came into contact included the great ethical and
religious system as well as numberless varieties of unwritten law
 Large portions of the globe are subject to laws the principles of which are drawn from
several widely differing cultures
 These principles do not combine easily with each other, more often than not, they
coexist uneasily and conflict in a variety of ways

Categories

Griffith’s categorisation:

a) WEAK
Law is what the State says it is such that legal plurality occurs when the State orders
different body of laws for different groups. (Operate within the ideology of legal
centralism)
Example: Malaysia – Syariah law for Muslim, Native law for native of Sabah &
Sarawak

b) STRONG
Challenges the ideology of legal centralism and states that not all laws are state
administered. Rather, legal pluralism is the coexistence of multiple legal orders in a
social setting. The law exists outside the established legal system, made by groups of
people for themselves
Example: Ethical & religious law – Church law, Customary law

Legal Centralism

All law is and should be state-sponsored law, uniform for all persons, applied equally across
all social groups and emphatically superior to if not exclusive of any and all other systems.
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Question: Does legal pluralism incompatible with modern legal system?

a) Violates fundamental principles like “equality before the law” and “universality”
b) Incompatible with the “rule of law” - the restriction of the arbitrary exercise of power
by subordinating it to well-defined and established laws
c) Compromises the state’s rightful monopoly on the legitimate use of violence
d) Competing claim for recognitions from the state – conflicting claims of authority
Conflicting demands/norms – the norms and values of customary law lead officials
and private persons to disregard the norms of state law [by engaging in nepotism (the
practice among those with power or influence of favouring relatives or friends,
especially by giving them jobs.) or ethnic patronage]. This results in deficiency in the
rule of law

Case Study: MALAYSIA

 Malaysia is a plural society – before the British occupation, Malaya was a commercial
port which caused various races to visit and settle on its land
 When British occupy Tanah Melayu, they introduced the Royal Charter of Justice
 Local inhabitants law – the Malay adat, Islamic law
 Migrants – Chinese and Indians customary law
 Merdeka 1957, establishment of Malaysia in 1963 – the blending of Common Law,
Islamic law, Customary law and Native law

Choa Choon Neo v Spottiswood – It was recognised that some aspects of English law
would have to adopt to the distinct religions, manners and customs of the local inhabitants
of Malaya. Example: marriage and divorce laws

Che Omar bin Che Soh v PP – Syariah law to apply to Muslims in certain civil areas
including Family law, polygamy and “immoral actions” but must be reminded that it is
NOT the supreme law of the land

Article 160 Federal Constitution - A sign of legal pluralism is accepted

“law” includes written law, the Common Law in so far as it is in operation in the
Federation or any part thereof and any custom or usage having the force of law in the
Federation or any part thereof

The wording of “having the force of law” – hampers the evolution of legal pluralism
jurisprudence in Malaysia as the rooms become narrower

Article 153 – Special position of Bumiputra and the natives of Sabah and Sarawak at the
expense of other ethnic groups such as Chinese and Indians

Article 73-75 – Gives power for States to legislate in areas relating to Senarai Negeri
(State List) and Senarai Bersama (Concurrent List) resulting to different codifications of
Islamic, norms, values and morals. Example: Akta Undang-Undang Keluarga Islam
(Wilayah-Wilayah Persekutuan) 1984 stated that the responsibility to care for the
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maintenance of illegitimate child falls solely on the behalf of the mother however,
Enakmen Undang-Undang Pentadbiran Keluarga Islam 1985 (Terengganu) allows
the mother to claim for maintenance of the illegitimates child from the biological father.

Customary law – Adat Perpatih is matriarchal in nature, customary land belongs to the
nearest female member in the clan. This conflicts with Adat Temenggong as well as the
principles of Islamic Law on inheritance.

Land Law – NLC governs the land law in Peninsular Malaysia; Sabah Land Ordinance in
Sabah; Sarawak Land Code in Sarawak; Malay Reservation Enactment 1913 & 1930
protects lands from occupation by other races but only applies to Muslim Malaysians.

Case Study: AUSTRALIA

Roberts v Devereux – tribal marriages were found to fall within statutory references to
“husband and wife”

Mobo v Queensland – Right of indigenous people to enjoy native title to their lands

Case Study: SOUTH AFRICA

Legal pluralism is accepted as means to guarantee “cultural and religious rights” provided
that the state may pass legislation recognising systems of personal and family law consistent
with and subject to other provisions of the constitution (Weak pluralism).

S.15(3) of SA Constitution - favours legal pluralism

(a) This section does not prevent legislation recognising:

i. Marriages concluded under any tradition or a system of religious, personal or

family law
ii. Systems of personal and family law under any tradition or adhered to by persons
professing a particular religion

(b) Recognition in terms of para (a) must be consistent with this section and other
provisions of the Constitution.

S. 39 (Interpretation Clause)

(1) When interpreting the Bill of Rights, a court, tribunal or forum—

(a) must promote the values that underlie an open and democratic society based on
human dignity, equality and freedom;

(b) must consider international law; and

(c) may consider foreign law.

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(2) When interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote the spirit, purport and objects
of the Bill of Rights.

(3) The Bill of Rights does not deny the existence of any other rights or freedoms that are
recognised or conferred by common law, customary law or legislation, to the extent that
they are consistent with the Bill.

Problems and Issues

 Interpersonal conflict within the system

 Dilemma between recognition of cultural diversity and the need for uniformity of law
 Superiority of state law and personal law
 The raise of monist – a single source of validity and legitimacy for all normative
issues
 Freedom of religion or freedom from religion?
 Pluralism subordinates’ religion and its truth to the postulate that all religion and non-
religious ideologies are basically equivalent an interchangeable while at the same time
posting its own ideology as its truth is paramount

Question: How does legal pluralism influence the outlook of State law?

 Acknowledgement of the existence of ‘others’ in the legal system

 Special arrangement was made to allow the application of different legal system –
Cth: The recognition of customary practices

Problems:

a) Difficult to identify “law” since law has become messy, incoherent and self-
contradictive
b) Law requires constant examination as the complex structure of society involves
interaction among diverse members of society across time and space