2.1 The Superiority of Unitary State Law

Perhaps the most common impulse, in this context, has been to argue not about monism and pluralism per se, but about particular features of whatever minority law is vying for recognition and their compatibility with human rights and state law. The discriminatory components of various forms of non-state law are often strongly underlined. Indigenous, religious and customary practices, for example, are faulted for certain abhorrent practices or their discriminatory effects on women.

This is not the place to discuss the extent to which particular practices associated with non-state law do or do not offend key human rights provisions – that they occasionally do is quite obvious, as does state law. I only want to stress that condemnations of legal pluralism based merely on disapproval of particular features of minority law are conceptually quite weak. First, it should be said that the debate tends to construe minority law as inherently less fair and rights-oriented than the dominant state legal framework. It is often particularly uncharitable in that respect, reducing the whole body of minority law to its most offensive features (for example, ‘Sharia is stoning’ or ‘gacaca is impunity’), overestimating the centrality of these features to the systems in question, and underestimating their ability to sever such features through competing interpretations. The reaffirmation of unitary law, then, is often constructed symbolically as a way of rejecting the minority practice and affirming the better ability of state law to protect the rights of all. The implicit claim seems to be that state law is naturally less discriminatory or productive of injustice.Footnote ²⁸ However, this fails to explain why state law should necessarily be more conducive to human rights in a context where we know the state obviously to have also the potential to be fundamentally discriminatory and unjust (that is, after all, the original impetus for human rights). Arguments about the greater human rights compatibility of state law clearly need to be assessed on a case by case basis, taking into account both the actual character of a given state law, and the evolutive character of non-state norms, particularly in contact with other normative registers.

Second, the argument that certain practices within non-state law offend human rights is not an argument against legal pluralism per se as much as an argument against certain excesses that might result from an unconstrained sort of legal pluralism involving a total loss of scrutiny by human rights. However, the historical practice of legal pluralism – certainly the sort that has been given recognition by state law on normative grounds (‘weak’ legal pluralism) – has typically allowed minority legal systems to operate only under close scrutiny. This was already true in the colonial context, where the ‘repugnancy clause’ allowed colonial administrators to set aside customary practices that were deemed to be shocking, and it continues to be the case in the great majority of existing weak legal pluralist arrangements.Footnote ²⁹ It is also the case today in all systems where sub-state legal systems have been given recognition, and where the passage to ‘weak’ legal pluralism is precisely an opportunity to bring minority systems under some kind of state constitutional control. The difficulties created by the coexistence of minority law and state law are many in practice, but unless one is willing to make the rather unsustainable argument that they can never be overcome, one is left with the reality that rights mechanisms have developed sophisticated strategies to monitor ‘subordinate’ systems for questionable practices.

Third, and most importantly, arguments about particular features of minority law are not essentially arguments against legal pluralism understood as the multiplicity of legal orders as such, as much as arguments against certain minority normative practices that, in a given context, happen to be associated with non-state law.Footnote ³⁰ Although the arguments are often made as if they were about legal pluralism, they are arguments that could be made about a unitary system of law. For example, the argument that Sharia discriminates against women is only an argument about legal pluralism if it emerges in a context in which the issue of legal pluralism arises because the effort is merely to carve out a legal niche within state law (in Ontario, for example, although of course in such a case even the attempt to create significant minority spheres of legal autonomy can be seen as fundamentally changing the nature of the system); but it may as well be an argument about the state's unitary law if it arises in the context of a state (in Saudi Arabia, for example). The suspicion, then, is that under the guise of criticising particular features of minority law through the lens of human rights, legal monists are often really criticising the very possibility of pluralism within legal orders.

2.2 The Superiority of Minority Law

Although arguments championing the superiority of state law from the point of view of human rights are perhaps the most prominent in this debate, the opposite register exists, arguing from the basis of the superiority of some features of minority law. This argument centres on the claim that contrary to a vision of ‘traditional law’ as necessarily backward in relation to the progressive character of state law, the exact opposite may sometimes turn out to be true.Footnote ³¹ It is an argument often made in terms of human rights, at least when it needs to be communicated to a society where that is the operative register. In particular instances, it may be that customary law leads to outcomes that some at least will see as more defensible, and even more conducive to human rights. In the run-up to the Boyd Report in Ontario, for example, some Muslim women argued ‘that they would be financially better off under Muslim family law than under Ontario law and […] that the use of Muslim arbitration would enable them to maintain that advantage’ – an argument clearly meant to be a refutation of the liberal feminist claim that Islam necessarily makes women worse off.Footnote ³² There are significant discussions concerning the impact of customary law on African women, and one notable empirical study found that community courts in Zimbabwe, for example, were more receptive to women's needs than were state courts.Footnote ³³

Some may go further and argue that certain forms of alternative arbitration mechanisms arguably characteristic of certain non-Western legal traditions are inherently more beneficial than the typical litigious theatre that characterises Western adjudication, even when it comes to human rights claims. Among the submissions made in the preparation of the Boyd Report in Ontario, some included the quite strong claim that faith-based arbitration was inherently superior because of a ‘long history of thought and efforts by enlightened men of faith to resolve conflict’ and ‘non-violent or violence-reducing conflict resolution systems’. Indeed, ‘[t]he adversarial court system arises from the concept of each side hiring a warrior to fight a battle on their behalf, so is inherently violent in origin’, whereas in faith-based arbitration and mediation ‘[t]he two sides mutually agree upon the arbitrator which they respect’ and the ‘[a]rbitrator has more invested in finding a comprehensive, permanent solution (otherwise the problem will return to the arbitrator, whose reputation is reduced), while judges ignore failed solutions, passing responsibility on to appeals courts or other judges’.Footnote ³⁴ Similar arguments have long been made in favour of indigenous forms of ‘restorative justice’ that may have a much less fractious impact on the community than the habitual combination of adversarial competition, exclusion of victims and systematic resort to prison sentences.

Whatever the substantive merits of such arguments, as a type of argument they clearly make much of the fact that in some systems legal pluralist arrangements may turn out to be more advantageous to the vulnerable. Their power lies in their ability to challenge the claim of legal monism to an intrinsic superiority in terms of justice. Again, however, and perhaps more surprisingly, it is not evident that such claims as such constitute a defence of pluralism. First, the claim that a particular minority law arrangement would in all respects be superior to state law from the point of view of rights is a highly contingent one. This sounds too much like the sort of essentialising claim that is associated with unitary state law. The claim may open up a dialogue with dominant forms of law about how to promote a more just legal system, but that is hardly decisive on the issue of the desirability of pluralism per se. Second, if the argument is that certain minority law arrangements are indeed superior, then why should they be restricted to a particular minority? Arguments about the inherently more rights-friendly features of particular minority legal arrangements betray either an intense form of legal separatism or simply a hegemonic aspiration to replace state law. To the extent that the argument is made from the point of view of rights (and not simply from some irreducible minority-specific criterion for the just), it inevitably leads to questions about why the benefits of the ‘better’ arrangement should not be spread to the rest of society. What is needed is a defence of pluralism, not simply of the higher rights-conduciveness of particular substantive legal arrangements.

To conclude this first section, the case for or against legal pluralism should proceed not only from whether particular forms of non-state law might offend the rights canon (although that is obviously an important issue in its own right), but also on the basis of whether there is something from a rights perspective that militates, in the absolute, for either pluralism or the unitary character of law within the state. Indeed, beyond the debates about whether any particular aspect of minority law offends human rights or not lies something much deeper. This deeper element is linked to the state's continued attachment to its monopoly of legitimate law, which is merely a continuation of its monopoly of legitimate force. It is in this fundamental critique of the state rather than the pillorying of minority law, based on peculiar aspects of particular minority legal traditions, that human rights may realise its more radical potential.

4.1 Equality and Discrimination

Equality arguments are a powerful way to make a case about the justice of arrangements in society as they relate to different groups. Equality arguments will be at their strongest where a particular group is denied the benefit of legal pluralist arrangements, whilst other similar groups are granted such a benefit. In the context of the ‘Sharia arbitration’ debate in Ontario, for example, one oft-heard argument was that if Jews and Christians (not to mention Canadian Aboriginal people) were granted the ability to draw on their own law, then Muslims should be too.Footnote ⁵¹ In other words, it will be difficult for the state to engage in partial legal pluralism that indefensibly privileges the rights of individuals coming from some groups over others. In the end, Ontario seems to have preferred to scrap the minimal religious arbitration it had allowed for Jewish and Christian minorities, rather than face an increasing public backlash if it extended it to Muslim minorities. Nonetheless, from the strict point of view of equality, it could just as well have allowed religious arbitration for all.

This is, however, the relatively easy case. Absent the recognition of legal pluralist arrangements for any group, equality arguments would seem prima facie not to help the case for legal pluralism. A standard answer to legal pluralist claims is that the treatment of all equally by the liberal state is what will maximise rights. In fact, equality before the law, liberals will argue, is itself premised on social and value pluralism and is thus diversity's best guarantor. Moreover, liberals will point to the strong associations between legal pluralism and colonisation, or even apartheid. Historically, human rights law has focused on anti-discrimination, particularly with respect to practices such as apartheid or genocide. Equality before the law also holds a special status in human rights law as a sort of basic guarantee that whatever other differential treatment may exist, each and every one has the same ability to seek remedies before the judicial system.

The only plausible way in which an equality claim might justify legal differentiation is if it can be shown that the position of individuals from certain groups is so disparate that to treat them similarly would effectively amount to discrimination. It is well established that ‘[l]egal departures from the general pattern of uniformity of treatment do not offend against fundamental principles of equality if they guarantee minorities genuine equality in the form of equal respect for their religious and cultural values’.Footnote ⁵² The distinction must be based on a legitimate aim, consonant with the needs of a democratic society. In contrast to racial discrimination, for example, it has been argued that ‘the desire of communities with distinctive cultural and religious traditions to ensure that these are preserved affords an entirely rational justification for making some distinctions in the legal field’.Footnote ⁵³ Legal pluralism, then, can stand as a corrective form to achieve ‘factual’ equality, transcending the formalism of liberal equality. Such a discourse arguably takes us away from the habitual conflation of equality with assimilation.

In this context, one of the red flags that is sometimes raised is the prospect of complaints by the majority group that they are being treated unfairly as a result of minorities obtaining some degree of legal autonomy.Footnote ⁵⁴ In practice, however, this has proved quite rare. The posture from the mainstream is typically one in which liberals fly to the rescue of the minority within the minority (women, for example) rather than demand for all, for example, the benefit of indigenous law or Sharia. The advantage that accrues to the minority legal culture as a result of a degree of recognition is seen as an advantage largely ‘in the eyes of the minority legal culture’, but not one which the majority is particularly interested in obtaining. The situation might be different if members of the majority were really to consider that the minority was obtaining certain features of legal culture that put them at some sort of legal advantage (for example, for the sake of argument, if the majority were to think that indigenous-type arbitration was something to which they also aspired). In such a case, though, it is not clear that the argument should be one against legal pluralism as opposed to one for generalising those particular features of the minority legal culture that are found desirable.

A more significant problem is that if legal pluralism requires a continuous adjustment of the application of the law to account for significant individual differences, this is either a recipe for chaos or it will require too broad and sweeping assessments of group differences. In the former case law breaks down as a tool of social regulation because it becomes excessively individualised; in the latter case minority members themselves may complain that their differences with the rest of society are being essentialised, and that steps taken to take into account their differences end up reinforcing their difference. The tolerance of human rights law for differentiated treatment in the name of equality is typically suited to the operation of particular rules and their disparate impact on individual minority members, and less evident as a means of justifying an entire regime of legal autonomy.Footnote ⁵⁵ Moreover, it is problematic to present differential treatment as remedial of discrimination when legal pluralism may well have the effect of entrenching and solidifying such discrimination. It is hard, in other words, to see legal pluralism as both based on a strong concept of difference and as a remedy for that difference.

4.2 Rights, Alienation, and Effective Remedy

A better understanding is needed of how individuals from certain groups are differentially affected by the law. One route to justifying recognition of legal pluralism is more legal in its inspiration and focuses on how the distance between individuals from certain communities and state law may in itself hinder human rights. Here, the issue is not so much particular substantive features of minority law (which may on many points overlap with the state law) as the natural proximity and legitimacy of minority modes of adjudication and legal institutions. Even at the high point of nineteenth century colonisation, some noted the fundamental injustice of imposing metropolitan law on individuals who were ignorant of it and who inhabited entirely different legal worlds. There is by now quite significant evidence that state law may in some cases be remarkably remote and alien for some minority groups.Footnote ⁵⁶ In practice, this can be a recipe for injustice and alienation,Footnote ⁵⁷ particularly in the context of criminal law where the disproportionate representation of minority members in many legal systems is often a telltale sign not only of their general alienation but also of their greater vulnerability to the law's repression. The fact that some systems of non-official indigenous law have effectively gone underground means that ‘indigenous peoples whose … concept of legality is ignored suffer from legal insecurity in the official system’.Footnote ⁵⁸

Indeed, even the principle of legality in criminal law (including nullum crimen sine lege) might militate against the applicability of state law and in favour of customary norms, where the latter are much more likely to be known to a defendant, to have been internalised, and to have therefore provided a measure of ‘fair notice’. Surely ‘[i]t is … wrong that a person should be punished when he not only did not know that the alleged offence was an offence against the law, but positively thought that he was obliged or entitled to carry out the act for which he is charged’.Footnote ⁵⁹ Non-recognition of minority law might also create problems of double jeopardy, where one is condemned under both state and minority law for certain offences. Given that minority law will effectively continue to exert its pull even where it is not recognised, moreover, it will create tensions between different senses of allegiance. This will both create significant uncertainty about the law and make it very difficult for individuals to reconcile their competing normative duties.Footnote ⁶⁰

These problems will be compounded where the state law is poorly understood not only in its particulars but, as is quite likely, in its very concept as reflecting a fundamentally different view of the ends and means of social regulation. Indeed, it has sometimes been argued that the hegemony of unitary state law does fundamental violence to the range of existing imaginations about the law.Footnote ⁶¹ In a context of incomprehension about the law, for example, punishments ‘that are not based on the prevailing value system … can be destructive and repressive because they are so out of tune with prevailing values that they are considered barbaric and inhumane’.Footnote ⁶² For example, just as certain non-Western punishments may be incomprehensible and seem barbaric, prison sentences may be incomprehensible and seem uncivilised for the normative systems inhabited by certain groups. Even if total alienation is not the outcome, at the very least a form of strong violence will have been done in some cases to individuals' self-understanding by the imposition of some disembodied liberal standard. In front of the Boyd Commission, a number of Christian lawyers insisted that ‘[m]any [faith] communities may feel that their core values, including the sanctity of the nuclear family, are threatened by having their disputes resolved outside of their faith community by persons having no familiarity with their belief system’.Footnote ⁶³

In such circumstances, it must be asked how imposing a unitary understanding of the law through a rigid application of liberal equality necessarily advances the cause of rights. Legal pluralism, conversely, seems to take seriously the gulf that can arise between state law and the actual normative practices of certain individuals, and the value of reducing that gap to foster meaningful possibilities of self-realisation through the law. Laws that apply to minority members are thus praised for their proximity to those whose lives they regulate, a proximity that is presented as having inherent value. For Philip Selznick:Footnote ⁶⁴

This is not merely an argument for legal effectivity, but one based on the embeddedness of individuals within regimes that they arguably have a legitimate expectation will regulate their lives.Footnote ⁶⁵ Some very traditional rights bases can even buttress the idea that proximate legal orders are an intrinsic good from the point of view of rights. The uncertainty concerning applicable norms and the misunderstanding of the state's legal system mean that, in practice, minority members will be reluctant to draw on it (even when it comes to rights grievances), creating further potential for injustice. In Guatemala, for example, it isFootnote ⁶⁶

Community courts, on the contrary, may be much more accessible and much more adept at providing remedies, especially in contexts where the state is chronically delinquent. This will at least satisfy a need for legal resolution but may even lead to remedies that, whilst not framed as human rights remedies, in practice have a similar effect or can be made to have a similar effect (the liberal state's record of providing remedies is far from spotless, as is illustrated by a constant flow of cases from the European Court of Human Rights). The paradox thus is that it is not inconceivable that minority law, assuming that some of its particular features are not antithetical to human rights, may make more sense in some cases from a human rights perspective than the modern human rights constitutionalism that is one of its most recognisable products.

4.3 Freedom of Thought, Expression, and Religion

The right to recognition of forms of minority law might be grounded, finally, in what are often referred to as group rights which, as opposed to collective rights, are individual rights to partake in a certain form of communal life. Internationally, Article 27 of the International Covenant on Civil and Political RightsFootnote ⁶⁷ – which is quite an influential statement – famously anticipates that:

Some have not hesitated to suggest that ‘the right to enjoy one's own culture includes a right to continue to be governed by one's own customary law’.Footnote ⁶⁸ Rachel Irigoyen has tentatively articulated the rather striking idea that ‘[i]n principle each human person or group has the right to be judged within the normative system pertaining to their culture’.Footnote ⁶⁹ In this case a connection is made between rights such as freedom of expression and freedom of religion and the idea that being subject to a legal system that one identifies with is ultimately a question of autonomy and liberty, one linked to a particular conception of the good life. It is interesting that in submissions made in Ontario in relation to the religious arbitration debate, several groups repeatedly emphasised the idea that such a possibility was in a sense mandated by the Canadian Charter of Rights and Freedoms. This is partly because of the Charter's particular attention to Canada's multicultural character, as expressed most notably in (its own) section 27,Footnote ⁷⁰ but it also reflects a deeper individual rights logic. For example, B'nai Brith Canada claimedFootnote ⁷¹ that it:

Living according to one's own laws in at least some respects might be seen as the ultimate freedom, one that the liberal state should in principle be willing to recognise as long as the arrangement does not clash with public order or some other overarching social goal. One can see how the converse – a situation in which all reference to non-state law is excluded, even in the administration of state law – might lead to serious injustices. For example, a court in Oklahoma recently found that a proposed law that would have prohibited any reference to the Sharia would have as its primary effect the inhibition of freedom and would ‘foster … an excessive government entanglement with religion’ by making it impossible for the plaintiff to have his will ‘fully probated by a state court in Oklahoma because it incorporates by reference specific elements of the Islamic prophetic traditions’.Footnote ⁷² Similarly, misunderstandings or mischaracterisations of minority law ‘will cause harm to (individuals’) sense of personal autonomy and self respect'.Footnote ⁷³

The strength of such reasoning is that it proceeds from the liberal canon by invoking key individual liberties for the sake of building support for minority legal arrangements. The demand for legal pluralism, rather than being based on collective rights (see Section 3 above), is entirely mediated through an appeal to individual autonomy. Indeed, one of the ways in which the legal pluralist debate has been configured in the West is through an insistent reminder that many Western societies have already recognised a large autonomy to their citizens in terms of choice of law. The relative weakening of ordre public, the rise of private mediation and alternative means of dispute resolution, and the generally less hierarchical character of the law in times of globalisation have all paved the way for a much greater fluidity in the applicable law. This has translated into considerable contractual autonomy extending to the choice of the rules governing agreements. Private arbitration has often been recognised and even encouraged by the state for a variety of reasons. As one blogger emphasises in the context of the Sharia debate in Oklahoma and other US states:Footnote ⁷⁴

In such a context, it can become disingenuous to abruptly limit the reach of contractual autonomy, absent a very compelling motive of public order. Surely, the argument goes, deeply held communal beliefs about certain norms are at least as worthy of respect as the more or less idiosyncratic individual preferences that might go into a contract. That arbitration may have been conceived initially for mainly commercial matters or with a certain implicit value system in mind does not change the fact that it is widely available and deeply premised on freedom of choice – precisely the sort of freedom that minority members may seek to exercise.

Moreover, choice of law is often presented as not only more effective, but also more just, allowing people to engage in forms of relational regulation that are better tailored to their normative aspirations. Libertarians certainly argue that the ability to opt for a certain legal system is a value in itself, to be curtailed in principle only in the face of some strong countervailing public interest. It is unclear, then, on what basis, having recognised such horizontal freedom, states might negate the ability to invoke a body of customary or religious law, without exposing themselves to allegations of double standards. As Lord Phillips put it in a widely circulated speech, given the degree of contractual autonomy granted by English law, ‘there is no reason why principles of Sharia Law or any other religious code should not be the basis for mediation or other forms of alternative dispute resolution’.Footnote ⁷⁵ To be sure, there will be exceptions where the individual freedom implicit in broad grants of contractual autonomy is negated in practice by, for example, undue pressure. But from a liberal point of view that is something to be proved on a case by case basis, not to be assumed for whole swathes of society. Moreover, if anything, one might think that a body of norms that is sustained by the normative practices of a significant group within society is a priori more worthy of forbearance than some idiosyncratic body of ‘bilateral law’.

Such an appeal to individual autonomy in defence of legal pluralism thus almost turns the tables on the liberal prejudice in favour of unitary law, by exposing some of its ambivalences. In the same way that human rights seek to ensure that individuals can ‘opt out’ of minority legal arrangements which they disapprove of as incompatible with their conception of themselves as citizens of the state, the exercise of individual self-determination should ultimately require that individuals have the ability to, at least partially, opt out of certain state arrangements that interfere significantly with their realisation as indigenously, culturally or religiously constituted selves. It is hard from the point of view of liberal rights theory (as distinct, again, from the ideology of state legal monism with which it is often in practice associated) to see how these liberties should not be symmetrical. This is especially true in view of the fact that states may be at least as legally repressive of minorities as are minorities of their own minorities.Footnote ⁷⁶ As Maleiha Malik puts it, ‘there is a strong argument that the liberal commitment to autonomy requires that the rules by which individuals live their daily lives should reflect their deepest religious commitments’.Footnote ⁷⁷ Finally, the grounding of legal pluralism in individual autonomy also manages to dispose of the more problematic aspects of appeals to group irreducibility and autonomy from the point of view of rights, by recasting the problem as one of the choice of law of a variety of individuals.Footnote ⁷⁸

By the same token and quite interestingly, grounding legal pluralist arrangements in freedom of thought and expression can also act as a human rights check on the forms of recognition of minority law that are allowed. In particular, a basis in freedom of thought would almost certainly command the sort of legal pluralism that allows group members to decide freely whether they want to partake in minority legal arrangements or not (through ‘opt-out’ or, even more liberally, ‘opt-in’ arrangements). It would be ironic if freedom of thought were invoked to ground minority law, and then denied to its members who do not recognise themselves in minority legal practices. This is perhaps the strength of resorting to rights language: the idea that one cannot have it both ways, and that the respect for freedom of thought implicit in its invocation to ground legal pluralism then necessarily imposes a certain fluidity of individual ‘membership’. It is also one of the best theoretical guarantees that minority legal practices, having derived their external legitimacy from rights discourse, will not turn internally into a rights graveyard.

There are, of course, some limits to a purely individualist grounding of minority law recognition. First, individualist reasoning may do violence to the very minority law it is meant to enhance, and thus create some reluctance from minority groups themselves. In other words, the reduction of minority normative practices to an entirely atomised and incessantly renegotiated choice of law between autonomous agents – whilst a convincing account of libertarian fantasies – will most likely be deeply inimical to minority legal orders' own understanding of themselves. This will not always be the case and obviously forms of adaptation of minority normative rationalities have made the most of the overtures provided to them by liberal-leaning legal systems. Nonetheless, a purely liberal framework for minority law has the effect of profoundly recasting the basis for authority of minority normative arrangements in the image of liberal rights discourse. Needless to say, few indigenous or religious groups view the authority of their legal arrangements as flowing from individual associational practices. Groups may thus feel that, even as they gain a conceptual foothold in the dominant legal system, they end up sacrificing too much.

Second, a strong argument against legal pluralism being grounded exclusively in pure individual rights language is the idea that a legal system is above all a relational or collective idea. The reduction to individual rights is also what made it relatively easy for the ECtHR to consider in the Refah case that matters of religion were ultimately for the private sphere and could not claim a formal recognition in the public sphere. Yet there is no point in ‘having a right to one's legal system’ on one's own if one cannot engage in legal relations with others, which exposes the fragility of liberalism's individualism. Even contractualism is but a very poor bilateral metaphor for law as a system that expresses more than a contingent meeting of minds, and is above all reflective and constitutive of community standards (and on this both proponents of various forms of minority law and of state law generally see eye to eye). The point about the collective character of law is, of course, also true of ‘culture’ or ‘religion’, but the collective adherence to a law typically requires more of the state than simply allowing collective cultural practices. The recognition of a minority legal system demands not just negative liberties (for the state to refrain from interfering with the practice of minority law), but an active institutional set-up designed to delineate the spheres of competence of minority law, arbitrate tensions, and so on. In this context, sooner or later the debate about legal pluralism's status from the point of view of rights must move beyond the limitations of both collective and individual rights discourse.

5.1 Resistance and Diversity

Legal pluralism has often served to sustain projects of resistance to imperialism or cultural hegemony. Recognising the role that resistance to unitary law has had in maintaining a society's diversity and preventing the repression of minorities can be a way of validating the importance of pluralism for a culture of rights. This is especially true of the ‘strong’ sort of legal pluralism that reinforces the sense that there are spheres that remain beyond the reach of the state, but it is also true of the sort of activity that takes place even within recognised forms of minority law. For example, in South Africa during apartheid, even as legal pluralism could be decried as a tool of segregation, it has been said that for blacks ‘the regime served the ideological purpose of preserving an element of Africanism in resistance to the overwhelming vilification of black culture by the dominant community’.Footnote ⁷⁹ In fact, traditionalism as a black ideology in South Africa increased in prominence once the South African regime ceased to be assimilationist (as it had been towards the end of the nineteenth century in the Cape area) and became segregationist. In Guatemala, customary law and its inscription in ‘distinct Mayan worldviews’ has been described as ‘a counter-hegemonic strategy used by indigenous communities to protect their limited and conditional autonomy from the central state’.Footnote ⁸⁰ Taking into account the fact that state law is often constructed through various types of violence (even liberal violence), this legal pluralism de résistance is testimony to the idea's potential as a last refuge of wounded hopes for integration and the dignity of groups.

Second, the recognition of legal pluralism can be integral to the process of acknowledging a society's inherent diversity. In fact, the rise of legal pluralism in Latin America is inseparable from the rise of the ‘politics of difference’, a deeper recognition of the richness of multiculturalism, and the consequent negative reassessment of the legitimacy of projects of national construction based on a single legal system. As the International Council on Human Rights Policy puts it, ‘in multicultural contexts at least, there is a tension involved in terms of the extent to which a “unitary” system actually reflects (or not) cultural plurality and is not too deeply coloured by the culture of the dominant socio-political group’.Footnote ⁸¹ Conversely,Footnote ⁸²

In other words, there may be something inherently unfair about imposing a unitary law in a very diverse society, not to mention persisting on liberal grounds with national construction projects that have shown ample historical potential for exclusion.

Note that here the debate shifts away from identifying groups that would merit a legal autonomy because of their inherent qualities, and instead focuses on how differences in a society play out distributively for particular minorities and should help to reconstruct notions of citizenship. Legal pluralism, then, becomes part of societies' ‘coming to terms’ with their essential diversity (assuming that this diversity exists and is not created as a ploy to discriminate) through an understanding of the ‘others’ as legal subjects on their own terms rather than as belonging to an imposed a priori category.Footnote ⁸³ The recognition of legal pluralism can be one of the cornerstones of more harmonious intercultural relations, based on an equal claim to respect for different communities' understandings of the law. Consider this example given in the Australian context:Footnote ⁸⁴

Legal pluralism can thus be part of a politics of inclusion through its implicit construction of the law's marginalised as full subjects of their own law. It canFootnote ⁸⁵

In a society that recognises some form of legal autonomy, the ‘significant bonus of a greater coalescence between the experience of individuals in their daily and practical lives and normative legal institutions …. means that the law is likely to “speak” to individuals in their own language, thereby ensuring meaningful identification'.Footnote ⁸⁶ In other words, legal pluralism can help to develop forms of integrative citizenship that simultaneously grant the same rights to all under state law, yet finds it in itself to recognise a diversity of legal orders.

5.2 Pluralism and Democracy

Arguments for legal pluralism can also be rooted in the degree to which legal pluralism can contribute to democracy. In the West, this runs against the traditionally close association between democracy and national projects though the imposition of unitary law. For some liberals, legal pluralism ‘cannot become the norm without endangering the permanence of the democratic political association’ and ‘cannot allow the coexistence of conflicting principles of legitimacy in its midst’.Footnote ⁸⁷ Yet the failure of liberal constitutionalism in some countries confronted with considerable diversity cautions against the idea that it is the only path to democracy.Footnote ⁸⁸ The obsession with maintaining the appearance of a unitary law in countries where the state is weak or corrupt, long after forms of non-state adjudication have taken over in providing at least a modicum of justice, can be profoundly misguided, as are ritual appeals to the integrative functions of unitary law when the existence of these functions is belied by reality. It should be clear that in many countries legal monism has had little to do with ‘the permanence of the democratic political association’ and much to do with the denial of all corps intermédiaires.Footnote ⁸⁹

Moreover, the idea that liberal pluralism (the tolerance of a diversity of values in society) can only be guaranteed by rigid adherence to legal monism can easily run into deep contradictions. For instance, members of minorities that are supposed to benefit from ‘the same law for all’ may repeatedly express strong attachment to different legal cultures as more representative of ‘their’ values through ‘flight’ to minority legal systems.Footnote ⁹⁰ In such conditions of disavowal (sometimes informed by a willingness to take liberal autonomy seriously), the dominant legal-monistic framework can no longer hide that it is itself the repository of a certain culture – one that ultimately, for example, prioritises citizenship over all other forms of allegiance or identity. That citizenship becomes an increasingly empty vessel, a theoretical postulate that cannot engender the conditions of its own realisation, and the form of which cannot belie the fact that it is no longer (and perhaps never was) inhabited.

Conversely, the idea that liberal pluralism must at a certain level go hand-in-hand with legal pluralism is appealing because it seems to be willing to take the idea of value pluralism further than liberalism typically has done, even if it means modifying what is after all only a means (the liberal rule of law) to better safeguard an end (the tolerance of a diversity of ways of life in a liberal society). At any rate, where liberals can point to the Nuremberg laws and apartheid as dangers inherent in abandoning the ideal of the same law for all, legal pluralists can point to various policies of forced assimilation (against the colonised, indigenous people, ethnic and religious minorities), or of violent reduction of political identities to a single concept of citizenship (for example, the various forms of political terreur since the French Revolution) as dangers inherent in unitary law.

Another clear democratic benefit of legal pluralism in some cases is that the denial of their legal concepts and institutions is one of the ways in which minority groups are ultimately disenfranchised from participation in society. It can be part and parcel of the denial of their autonomy as legal, and therefore also as political, subjects. Reasons and Pavlich, for example, have argued that legal alienation has led Canadian indigenous peoples to lose not only their lands, but ‘their culture and self-worth’.Footnote ⁹¹ Conversely, legal pluralism can be part of a ‘politics of recognition’ – one that in constituting individuals as (partly, at least) subjects of their own laws can paradoxically pave the way for their greater participation in society.Footnote ⁹² It has been said that recognising legal pluralism ‘is only possible within a model of pluralist society where (indigenous peoples and campesinos) are treated as political subjects and not as the objects of a policy’.Footnote ⁹³

In this context, legal pluralism can almost act as a check-and-balance on the enthusiasm of the majority to curb, subdue and condemn the legal practices of the minority, in a way that is fully reconcilable with democratic theory's search for majority-countervailing mechanisms. This is why Rachel Sieder, for example, has argued that the ‘recognition of indigenous norms and practices is an essential part of democratizing the legal structures of the pluri-cultural state’.Footnote ⁹⁴ Legal pluralism takes some of the violence out of unitary law and its imposition upon a variegated, irreducible terrain and, in so doing, better prepares the ground for a functioning democratic polity seeking the adherence of all rather than the crushing of the marginal. In other words, legal pluralism, rather than distracting from participation in democratic institutions, may in some cases lay the groundwork for such participation.

5.3 Legal Pluralism as Transitional Justice

A final way of justifying legal pluralism socially is as a form of ‘transitional justice’ designed to remedy particularly unjust situations inherited from history. This strategy avoids some of the difficulties raised by a purely identity-based or democratic approach to legal pluralism, which can at times sound strangely ahistorical. By contrast, thinking of the issue as one of transitional justice orients the debate in a more dynamic and historically conscious vein. This approach can link the denial of legal pluralism to the existence of particular patterns of injustice and thus make a better case of why, in certain circumstances, reliance on a strict liberal egalitarian framework is really an instance of ‘one step forward, two steps backward’. Conversely, it ties the recognition of legal pluralism to a particular history of neglect, oppression, and discrimination that unitary law has inflicted (and sometimes continues to inflict) upon certain groups.

Indeed, whatever the merits of unitary state law once it is in place and it has, in a sense, engineered the very conditions of its existence (having, for example, significantly reduced individuals to their liberal selves and to citizens), it is difficult to ignore the extent to which this process has very often been accompanied by a considerable degree of violence, both physical and symbolic. This was the case, of course, in Europe where a robust and complex heritage of customs was wiped out by centuries of vigorous sovereign centralisation. It also characterised the colonial encounter, where in some cases the application of metropolitan law was part of a process of denying indigenous sovereignty. In practice, for example, the non-recognition of traditional marriages on the basis of the repugnancy clause was conveniently accompanied by the denial of customary land rights.

The recognition of legal pluralism, then, can be recast as a specific exercise in remedying the predicament in which some groups find themselves as a result of their identity having been deeply compromised. There is some evidence that this view of legal pluralism is quite influential, particularly in the emblematic case of indigenous peoples. For example, the Special Rapporteur on the Rights of Indigenous Peoples has argued that ‘a fair and effective system for the administration of justice is crucial in fostering reconciliation, peace, stability and development among indigenous peoples’.Footnote ⁹⁵ In Gerhardy v Brown,Footnote ⁹⁶ an Australian court considered legislation recognising traditional land rights as a ‘special measure’ under Article 1 paragraph 4 of the International Convention on the Elimination of all Forms of Racial Discrimination – a form of affirmative action intended to compensate for the historically disadvantageous situation of a group.Footnote ⁹⁷ The transitional justice element in legal pluralist arrangements is very clear in some domestic instruments. For example, the Aboriginal and Torres Strait Islander Commission Act of 1989, which grants significant autonomy to that group, was specifically adopted ‘in recognition of the past dispossession and dispersal of the Aboriginal and Torres Strait Islander peoples and their present disadvantaged position in Australian society’.Footnote ⁹⁸ The Australian Law Reform Commission has observed that ‘recognition as a form of redress for past wrongs may have real symbolic value’.Footnote ⁹⁹

Legal pluralism, then, appears less as a threat to constituted and functioning polities and more as a way of mitigating the negative consequences of deeply compromised or inherently implausible ones, as a result of some nefarious historical legacy. Specifically, as a remedy, recognition is a form of ‘satisfaction’ – one that acknowledges the harm done to the community as a result of non-recognition and, conversely, the respect that is offered to the community as a result of recognition. This particular normative orientation may explain why indigenous peoples have been treated so differently by the mainstream of international human rights compared to, say, religious minorities in modern multicultural states which often cannot claim as much of a litany of grievances and alienation. Thinking about legal pluralism in the context of transitional justice, of course, does not address the question of whether the transition is towards permanent pluralism or eventual monism, and in this lies an ambiguity that will not easily go away; but it does make the most of the idea that legal pluralism can be a context-specific recognition of harm done to both individuals and groups.