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Leopold Pospisil: A Critical Reappraisal
... Legal pluralism calls attention to the coexistence and occasional contradiction between dominant and subaltern legal regimes within a single nation-state. However, in much the same way that scholars have not been able to agree on what actually constitutes a suit- able definition of law, definitions of legal pluralism have been actively debated since the beginning of the use of the concept in legal anthropology, and related academic disciplines, in the late 1960s (Goodale, 1998;Griffiths, 1986). By understanding how concepts like legal pluralism (Merry, 1988) are defined and negotiated in a neighboring field, we can understand similar dynamics in the policy domain. ...
This article outlines some theoretical and methodological parameters of a critical practice approach to policy. The article discusses the origins of this approach, how it can be uniquely adapted to educational analysis, and why it matters--not only for scholarly interpretation but also for the democratization of policy processes as well. Key to the exposition is the concept of "appropriation" as a form of creative interpretive practice necessarily engaged in by different people involved in the policy process. Another crucial distinction is made between authorized policy and unauthorized or informal policy; it is argued that when nonauthorized policy actors appropriate policy they are in effect often making new policy in situated locales and communities of practice. (Contains 5 notes.)
In this paper, I propose a conceptualization of "interlegal balancing" as a distinctively legal-argumentative "interface", or structure for the relation between norms sourced in overlapping and diverse legal orders. My aim is to situate this concept. A concrete or formal structure for its application is left pending. This paper's argument is chiefly "architectonic" or theoretical in a structural and conceptual sense, but it certainly rests on a number of normative considerations. It proceeds in three main sections. The first section (§1) regards my working assumptions regarding the concept of legal order. I gather the continuing relevance of a "necessary and sufficient conditions" type of approach to the concept of a legal order. The next two sections embody my core considerations. They regard, respectively, two different but mutually complementary standpoints. A first standpoint (§2) could be described as a more "deductive" mapping exercise. It is a reconstruction of received views of the distinction between varieties of legal pluralism on the one hand and constitutionalization or constitutionalism beyond the state on the other hand. It aims at structuring a comparison-friendly "scale" upon two crossed variables: the presence/absence of hierarchy and the necessity of either balancing or subsumption. A second standpoint (§3) could be described as a more "inductive" or cumulative effort. Upon the results of the previous standpoint, it becomes necessary to gather more determinate criteria for the identification of legal norms and their preference. In its turn, these criteria are further subdivided into two sorts: classifying criteria of law and qualifying criteria of law. Gathering some foremost contributions in each sense, I announce a further pending research path proposing a taxonomy in relevant guiding criteria for interlegal balancing. I conclude remarking a very brief summary of my argument's open questions (§4).
The negative effects of economic globalisation and the emergence of a host of post-Cold War political crises, accompanied by a drastic increase of global migration, have in many parts of the world, including the US, Canada, and Europe, spurred social movements lobbying for some or greater normative and institutional recognition of religion by the law of the state. Arguing that the resultant new religion-based legal pluralism must be theorised in the light of the increasing colonisation of the life-world by law (Habermas), I then discuss the different positions scholars have taken in the trans-disciplinary debate on “legal pluralism” since the late 1950s. In the course of this chapter, I seek to make three additional points: (1) once religious norms are accommodated in state law, they usually undergo a significant degree of transformation; (2) the term “law” should be reserved for state law only, not to obfuscate the hegemonic claim of the state and of the international community of nation states in the competition between different normativities; and (3) the common blackboxing of the category of “religion” by law-makers and scholars of “legal pluralism” alike has abetted the obscuration of the unequal treatment of religious communities in many countries.
This is a reply to certain aspects of Mark Ryan Goodale, ‘Leopold Pospisil: A Reappraisal’, Journal of Legal Pluralism 40: 123–149 (1998) by the subject of that paper. It is argued that Goodale’s limitation of his discussion to two books and one article by the writer produces erroneous assumptions about and criticisms of the writer’s work. It is suggested that the lack of appreciation of his work among American anthropologists is not a result of his self-assured style but of an unwillingness to accept the challenge of his insistence that ethnologists must study cultures other than their own and must acquire a full knowledge of the culture and language of the culture studied, and of his criticism of those who follow fashionable ‘-isms’.
The idea of legal pluralism within one society appeared in anthropology, though not in a very systematic form, in the work of K. N. Llewellyn and E. A. Hoebel "The Cheyenne Way" from 1941. Hoebel later withdrew from their common positions. In the 1950s the question of multiplicity of legal systems was further studied by an American anthropologist of Czech origin, Leopold Pospíšil. This perspective has become one of the pillars of his comparative theory, empirically substantiated by his field research work. In this paper we focus more closely on Pospíšil´s understanding of law and its functioning at different legal levels.
In the last two chapters an exposition has been given for the detailed study of the systems of property relationships through the description of the basic principles of the socio-political organization and of the administrative and legal pluralism in which they operate and of which they are part. I have until now spoken of Adat, Islamic Law and Written Law as “bodies” or “systems” of conceptions. I should like to emphasize that this was a description of ethnographic facts, for in the official legal system of Indonesia, in the social processes which deal with property and inheritance, and in the knowledge of the Minangkabau these three bodies of conceptions are treated as distinct systems. In this chapter, I shall describe the substantive content of these systems.
From the colonial period until the early 19th century, the country court served as a "people's court" and a local peacekeeping force in New England communities. Today, the county court has become the focal point for struggles over morality, community, and rights. Its subjects include not only affluent property owners but also the working class and welfare poor, the so-called "other half of America". The book grapples with questions of agency and the production of social order, analyzing how the power of law can be mobilized to blur the distinctions between "garbage" and official law.