Legal Pluralism and the European Union

DOIhttp://doi.org/10.1111/j.1468-0386.2006.00319.x
Date01 May 2006
Published date01 May 2006
306 © 2006 The Author
Journal compilation © Blackwell Publishing Ltd. 2006
Legal Pluralism and the European Union
N. W. Barber*
Abstract: This article advances a pluralist model of a legal system. It claims that a legal
system is pluralist when it contains inconsistent rules of recognition that cannot be legally
resolved from within the system. The first part of the article sets out the model, demon-
strating why it requires a departure from the classical accounts of law advanced by writers
such as Hart and Kelsen. The second half applies this model to actual legal orders: first,
to Rhodesia during the crisis of 1965, and then to the legal orders of the European Union.
It is argued that there are interesting and important points of similarity between the two.
Legal pluralism has suddenly become fashionable. Escaping the confines of law and
anthropology, it is now common to argue that Europe’s intermingling legal systems
demand a pluralist interpretation. Implicit within this call is the assumption that plu-
ralism is a novel and controversial way of understanding legal orders; that the classi-
cal, state-centred, models of legal systems cannot accommodate this new phenomenon.
This article seeks to advance a modest account of legal pluralism and its significance
for Europe. It is a modest account because it is has so few enemies: many contempo-
rary writers on jurisprudence, such as Raz and Finnis, would probably be comfortable
with its claims. It is, however, sufficiently controversial to be interesting: Hart, Kelsen,
and Dworkin would all dissent from its conclusions. This controversy enables the article
to avoid the central problem that has beset recent work on pluralism: its remarkable
popularity.Some recent writers have turned modesty into a vice: ‘pluralism’ has become
so thin a theory that virtually all respectable writers on legal philosophy would endorse
their claims. If everyone is a pluralist, pluralism ceases to be an interesting theory—it
amounts to little more than the application of standard models of legal systems to a
new factual situation.
This article will argue that a legal system can contain multiple rules of recognition
that lead to the system containing multiple, unranked, legal sources. These rules of
recognition are inconsistent, and there is the possibility that they will, in turn, identify
inconsistent rules addressed to individuals. In addition, pluralist systems lack a legal
mechanism able to resolve the inconsistency; there is no higher constitutional body that
can resolve this dispute through adjudication or legislation. Consequently, pluralist
legal systems contain a risk, which need not be realised, of constitutional crisis; of offi-
cials being compelled to choose between their loyalties to different public institutions.
European Law Journal, Vol.12, No. 3, May 2006, pp. 306–329.
© 2006 The Author
Journal compilation © 2006 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
*Trinity College, Oxford. Thanks are due to John Bell, Timothy Endicott, Liz Fisher,John Gardner, Nico
Krisch, Peter Oliver, John Stanton-Ife, and Alison Young.
May 2006 Legal Pluralism and the European Union
© 2006 The Author 307
Journal compilation © Blackwell Publishing Ltd. 2006
There are, then, three claims that must be explained and defended if this pluralist
account of a legal order is to appear plausible and interesting. First, the meaning of
‘inconsistent’ in this context, and whether it is possible for legal rules to be inconsis-
tent. Second, can a legal system contain legally irreconcilable inconsistent rules of
recognition? Third, it must be shown that legal systems with inconsistent rules of recog-
nition are more than rare, brief, aberrations; that the pluralist model of legal systems
is helpful in explaining important features of common legal orders. This task will be
accomplished by a close examination of the Rhodesian crisis of 1965, which will be
presented as a brief but clear example of a pluralist legal order, and then the model
will be applied to the more opaque question of the relationships between European
and domestic legal orders. Hopefully, the utility of the abstract jurisprudential tools
developed in the first half of the article will be demonstrated by the practical conun-
drums resolved in the second.
IWhat is Legal Pluralism?
In the 1970s and 1980s a group of academics emerged who described themselves as
‘legal pluralists’.1They insisted on the significance of rules that were outside the tra-
ditional boundaries of ‘law’ as conventionally understood; norms that were not found
in cases or statutes. Early writers were preoccupied with the integration of customary
law into the legal system; in particular, the ways in which imperial legal systems had
accommodated, incorporated, and limited religious and tribal law.2Sociolegal writers
paralleled the trend, focusing on the rules that condition people’s lives and refusing, or
attempting to refuse, to distinguish between ‘legal’ and ‘non-legal’ rules.3Though pro-
viding a healthy antidote to myopic concentration on domestic law as a form of social
ordering, the contribution of these ‘pluralists’ was rather less controversial than they
supposed. Though they frequently defined themselves against the work of established
writers on jurisprudence—in particular Hart and Kelsen—much of what they asserted
was compatible with those they sought to oppose. The suggestion that a legal system
can recognise and incorporate rules from other legal systems was hardly revolutionary.
Kelsen had already explained how a legal system could incorporate the rules of a sep-
arate system in the context of a discussion of conflict of laws cases.4In Kelsen’s work
the apparent conundrum of the courts of one state applying the law of another is
quickly resolved: there is a rule of the domestic system that identifies and validates the
foreign law, and, in so doing, transforms it into a rule of the domestic system. Exactly
the same applies when the legal system recognises tribal or religious laws: they are
recognised by a rule of the national legal system and become part of it. Furthermore,
the claim that other normative systems bear on an individual and have a practical
impact as great as, or greater than, law is also commonplace. Again, Kelsen had
engaged with this objection.5Though it is unarguable that the rules that apply to a
1See generally, J. Griffiths, ‘What is Legal Pluralism?’ (1986) 24 Journal of Legal Pluralism 1.
2For instance,M. B. Hooker,Legal Pluralism—An Introduction to Colonial and Neo-Colonial Laws (Oxford
University Press, 1975).
3S. Moore, ‘Law and Social Change: the Semi-Autonomous Social Field as an Appropriate Subject of
Study’, (1973) 7 Law and Society Review 719; Griffith, op. cit. note 1 supra,38–39; See also, E. Ehrlich,
Fundamental Principles of the Sociology of Law,trans. W. L. Moll (Russell & Russell, 1936).
4H. Kelsen, General Theory of Law and the State,trans. A. Wedberg, (Harvard University Press, 1945)
243–248.
5Ibid.,24–28, discussing Ehrlich, op. cit. note 3 supra.

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