Date01 April 2004
Published date01 April 2004
AuthorYüksel Sezgin
uksel Sezgin
This paper provides a political analysis of legal pluralism from a “new
institutionalist” perspective. In response to question of why states recognize
and incorporate non-state normative orderings into their legal systems, it
is hypothesized that the decision of incorporation is made to enhance the
capacities of postcolonial states with “rational” calculations. In this respect,
two new categories of legal pluralism are introduced: capacity-enhancing
recognition and capacity-diminishing recognition. The paper lastly assesses
the implications of legal pluralism upon the state-society relations and
individual rights and liberties of citizens in the case of Israel.
Legal pluralism is one of the most important themes of state-society relations.
However, despite its worldwide appearance, it has been usually ignored by
political scientists. To compensate for this lapse, this paper will aim to provide a
more explicitly political analysis of legal pluralism from a “new institutionalist”
Studies in Law, Politics, and Society
Studies in Law, Politics, and Society,Volume 32, 197–233
Copyright © 2004 by Elsevier Ltd.
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1016/S1059-4337(03)32006-X
198 Y ¨
perspective by focusing on strategic interactions between state leadership and
social actors. For that matter, I will embark on my analysis by situating the concept
of law, as a key meeting point in the context of state-society relations. Then, in
the second section, I will venture into the existing literature and current scholarly
debates on the issue of legal pluralism. In this part of the paper, I will also render
a def‌inition of the concept and elaborate on the two main types of legal pluralism
(state law pluralism and deep legal pluralism).In the third section, in talking about
the options of the state in regard to legal pluralism, I shall endeavor to answer the
question of why states recognize and incorporate non-state law into their legal
systems. In addition, in terms of policy implications, accounting for variations of
policy outcomes in the structure and functions of polycentric legal institutions over
time and across populations (ethno-religious subgroups), the study will introduce
a new conceptual and theoretical framework in which two new sub-categories
of legal pluralism (capacity-enhancing recognition and capacity-diminishing
recognition) will be discussed. Subsequently, in the last section, drawing upon
the case of Israel, I will intend to demonstrate the political implications of legal
pluralism on the capabilities of the Israeli state, and on the rights and freedoms of
Israeli people.
According to Joel Migdal (1988):
[A] state is an organization, composed of numerous agencies led and coordinated by the state’s
leadership that has the ability or authority to make and implement the binding rules for all
the people as well as the parameters of rule making for other social organizations in a given
territory (p. 19).
Building his concept of state on this Weberian ideal-type, Migdal also points out
that a competent state should be able to penetrate society, regulate social rela-
tionships, extract resources and appropriate or use these resources in determined
ways (Migdal, 1988). In this respect, in order to mobilize material and human
resources to accomplish its intended goals, any competent state must have an
ability to make its own rules and have other constituents of society obey and
accept these rules as the ultimate rules of the game. In sum, Migdal sees the state
and societal forces engaged in a vital struggle for social control.
Broadly speaking, social control can be def‌ined as the determining process
of the rules of the game to which all social forces and state apparatuses are
expected to subordinate. In reality, this conf‌lict, which constitutes the backbone
of state-society relations, is over who has the right and ability to make rules in a
given territory (Migdal, 1988, 2001).
A Political Account for LegalConfrontation Between State and Society 199
These rules of the game are usually called law. Law is an “instrument” of the
state to regulate and direct behavior of its institutions, people and social forces
(Migdal, 2001). From Plato (1992) in ancient times, through Hobbes (1994) in the
17th century, Marx (Tucker, 1978) and Weber (Cotterrell, 1983) in modern times,
state’s monopoly in rulemaking has been almost undisputedly established. Ac-
cording to many,nation-states’ monopoly in rule making, or rule of law in Unger’s
terms, has been f‌irmly secured in the process of rationalization, industrialization
and modernization (Bentzon & Brøndsted, 1983; Durkheim, 1984; Galanter, 1966;
Unger, 1976). In this process, as part of the struggle for social control, uniform
state law has either eradicated or subdued rival non-state normative orders1to
establish itself as the sole legal authority on a particular piece of land.2Hence, in
this way of thinking, states are believed to hold the exclusivemandate to legislate,
execute and adjudicate within their territories. Situating law as a keymeeting point
of state-society relations, the phenomenon of state-monism (the primacy of state
law) suggests that “law is and should be the law of state, uniform for all persons,
exclusive of all other law, and administered by a single set of state institutions”
(Griff‌iths, 1986,p.3).
In this regard, a state’s monopolistic competence in making, implementing and
enforcing its own laws will be a decisive indicator of that state’s capacity. Ideally
speaking, state capacity (Geddes, 1994, pp. 12–19; Migdal, 1988, p. XIII) refers to
the ability of state leaders to achieve social control by obtaining the highest levelof
social compliance possible, and use the agencies of the state to get the ruled to do
what the rulers want them to do by employing the state’s extractive, regulative and
coercive capabilities at the lowestpolitical and economic cost possible by resorting
to least amount of violence necessary. Hence, the lawis the main medium of social
and institutional change in a modern nation-state. It permits the state leadership
or the preponderant groups with a legitimate framework to meddle in the public
sphere (Habermas, 1989) to discipline/control the ruled and forge their identity
and consciousness in accordance with the hegemonic ideology.3Thus, without
this effective means, we cannot formally talk about the existence of a state. The
degree and level of the state’s capacity will be commensurate with its eff‌icacy
in implementing its own rules, particularly in the process of state building. After
all, the process of state crystallization is very much dependent on the success of
parastatal institutions in encountering those opposing the implementation of state
rules (Migdal, 1989, p. 5). For this reason, “state leaders, especially, have had a
very strong interest in presenting their idea of law as if no other meaning of it
existed or mattered” (Migdal, 2001, p. 151).
The facts on the ground, however, suggest that the principle of legal monism
(state is the sole source of law) is most of the time contested and even distorted
by potential rulemakers in the society. The construction of law as a unif‌ied system

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