Legal Pluralism and the European Union

• DOI: http://doi.org/10.1111/j.1468-0386.2006.00319.x
• Date: 01 May 2006
• Author: N. W. Barber
• Published date: 01 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.