Concept of Legal Pluralism
The natural state, which Hobbes described as state of nature, people lived by their group norms, which in one or the other respect differed from group to group, we may say diversity is natural while uniformity is forced. Hobbes also gave a harrowing depiction of that society and developed the idea of a sovereign to whom all people expressed their allegiance in exchange for establishing order, following that Austin used the concept to define law in top down terms that all law was direct or indirect command of the sovereign and whatever could not be so proved could not be law. Further studies noticed the difference between state law and people’s behaviour. People practiced and observed many things of which either there was no reference in the state law or even if there was such a reference, people behaved differently without coming into conflict with it. People indulged in many activities by making clubs or associations or religious groups or any other informal organisation without coming in conflict with the state law. The norms set by these bodies or groups could regulate large part of their lives, sometimes even larger than regulated by state law. Initially all societies lived like that by their customary laws. Even after the establishment of the state they continued to live like that except in criminal activities for which generally the same law applied to all of them.
In India, our Constitution fully recognises and accommodates the social and legal heterogeneity of the country. It sets aside the family outside the discipline of Fundamental Rights. Neither like many other constitutions it creates a Fundamental Right to family nor does it disturb it by bringing the personal laws within the domain of law.
Besides personal laws, Constitution has provisions recognising and protecting social and legal pluralism. Creating a federal system which recognises geographical, social, linguistic and other differences among different States and accordingly does not treat all of them uniformly in all matters. So, when there exists multiple laws or legal systems, confined to one geographical space, defining the conventional boundaries of a nation state, or the same social field, we term it as Legal Pluralism. Where, sub-groups in the society, such as family, lineage, community, political confederation, have their own multiple levels of legal system, different from other sub-groups. These sub groups are ranked hierarchically, and are similar and homogenous in nature. The legal system mentioned, includes the system of courts and judges supported by the state as well as non-legal forms of normative ordering, some of these being parts of institutions, such as factories, corporations, universities. They include written codes, tribunals and security forces, which sometimes replicates the symbolic form of state law. Therefore, arguably, every society is legally plural, they have multiple legal systems. Hooker in his research in various parts of Asia, Africa and Middle East defines legal pluralism as circumstances "in the contemporary world which have resulted from the transfer of whole legal systems across cultural boundaries".
Sally E. Merry in her article Legal Pluralism discussed about Classical Legal Pluralism and The New Legal Pluralism, the former being the research based on colonial and post-colonial societies, based on the analysis of intersections of indigenous and European law, the later relates to plural normative orders found virtually in all societies, where the center of investigation lies on the relationship between the official legal system and other forms of ordering that connects with it but are in some ways separate from and dependent on it. We can connect The New Legal Pluralism with the example of India. India having vast ethnicity, various religious laws, various levels of jurisdiction and courts, where the ‘center of investigation’ lies with the Judiciary. Although it is an erroneous perception that we in India have different personal laws because of religious diversity. Instead, the laws governing differ from state to state, and it seems the drafters of the Constitution did not intend total uniformity in the sense of “one law for the whole country”, because the power to legislate in respect of personal laws has been given to both Parliament as well as the state legislative assemblies.
With so many religious laws, we can say that, India has always had Legal Pluralism. Such pluralism is based on the framework that the protection of religious freedom is essential to the survival of these societies, and that a neutral secular state is required to legally enforce such pluralism. Although we still face problems, particularly in relation to the distinction between the religious and the secular in constitutional theory and the principle of equal treatment.
Recently, application of the ‘Uniform Civil Code’ has been in talks, to have a common set of civil codes for all the citizens in the country, regardless of their religion, caste or creed. The different religious laws that are present in the country, are another example of what we call the Legal Pluralism. The problem with the application of a Uniform Civil Code and denial of Legal Pluralism on the other hand, and between uniformity and legal pluralism, the latter is a superior value. History contains many instances of pluralistic legal systems in which multiple sources of law existed.
Therefore, according to me in India, there shouldn’t be a Uniform Civil Code, instead there should must be an alternative model of pluralism which does not violate the model of religious freedom that is embodied in the constitutional theory of the country. Also, a Uniform Civil Code might hurt sentiments of several groups and their religions.
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Author Details: Carishma Bhargava (O.P. Jindal Global University)
The views of the author are personal only. (if any)