Using Systems Theory to Study Legal Pluralism: What Could Be Gained?

Published date01 June 2012
Date01 June 2012
DOIhttp://doi.org/10.1111/j.1540-5893.2012.00489.x
Using Systems Theory to Study Legal Pluralism:
What Could Be Gained?
Richard Nobles David Schiff
This article examines the ability of modern systems theory to provide a
foundation for understanding the problematic notion of legal pluralism, and
to the ability of scholars to apply that understanding to engage in the study of
pluralistic legal orders. In particular, it develops the observations of systems
theory of the relationship between state law and violence by adopting one of
its linked ideas, that of structural coupling. It also considers the role played by
translation when law is identified by reference to the application of the legal
code: legal/illegal. The whole analysis is underpinned by systems theory’s
account of the differences between studying premodern and modern societies.
This article examines the ability of modern systems theory
(autopoietic or neo-systems theory) to provide a foundation for
understanding the problematic notion of legal pluralism. But first
we need to indicate why legal pluralism is problematic for sociolegal
studies in particular and jurisprudence in general.
Legal pluralism seeks to extend the study of law beyond state
and interstate legal orders to include non-state-sourced forms of
law.1In so doing, it raises a specter such that law ceases to be
identifiable as a separate social formation, as the border between
the legal and the social is dissolved. Phrases such as “law from
below” (Merry et al. 2010) or “an oppositional postmodern under-
standing of law” (Santos 2002) or “law between the global and the
We wish to thank our Queen Mary colleagues, Roger Cotterrell and Prakash Shah,
Michael King of Reading University, and Andrew Halpin of the National University of
Singapore for their constructive comments on an earlier draft of this article. We also wish
to thank the editors and reviewers of Law & Society Review. Please address correspondence
to Richard Nobles, Queen Mary University of London, Mile End Road, London E1 4NS;
e-mail: r.nobles@qmul.ac.uk; and David Schiff, Queen Mary University of London, Mile
End Road, London E1 4NS; e-mail: d.schiff@qmul.ac.uk.
1Early motivation for such extension reflected criticism of the exclusion of forms of
law from the “imperialism” of Western state-centered approaches (for background see
Chiba 1993; Fitzpatrick 1984; Merry 1988), while recent motivation (perhaps a second wave
of legal pluralists) also reflects the need for inclusion of forms of law that processes of
“digitalisation, privatisation and globalisation” seem to entail (Teubner 2004, 3; for an
earlier statement of this more recent motivation, concentrating on lex mercatoria, see
Teubner 1997).
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Law & Society Review, Volume 46, Number 2 (2012)
© 2012 Law and Society Association. All rights reserved.
local” (Goodale 2007) or “legal hybridization” (Santos 2006) tend to
reverse the hierarchical assumptions implicit in much legal practice
and scholarship, and phrases such as “the more the merrier”
(Melissaris 2004), or those applying the distinction between “law as
one” and “law as many” (Davies 2005), imply that law can only be
captured in a combination of conceptions rather than in a single
conception, and in a range of linguistic forms rather than in any
single form (Chiba 1998). A concept of law unencumbered by its
associations with the nation-state and the activities of legal officials
can easily make it impossible to understand—and thereby study—
law as a separate formation (as occurs when law is identified with
multiple social norms, general accounts of social control, strongly
held commitments, cultural conceptions, and so on). Indeed, once
we move beyond the study of law as state law, what prevents us from
identifying different criteria for what constitutes law, according to
our own observational standpoints and research objectives? The
problem that then arises, and that appears to be a feature of legal
pluralism–motivated studies of legal orders, is that these studies
tend not to accumulate into anything like a coherent and integrated
body of knowledge.2
If, as we hope we have briefly demonstrated, legal pluralism
raises difficult issues for sociolegal studies, there seems to be good
reason to attempt to find alternative approaches that facilitate
better understanding and offer a better foundation for research.
And it is in this light that we propose systems theory. However, we
undertake this task with the knowledge that the general features
of the theory have generated considerable skepticism toward its
potential to inform something as focused on the local and specific as
legal pluralism. As a theory of society, systems theory has a level of
abstraction that seems far removed from the study of concrete legal
orders, let alone the empirical study of particular aspects of those
legal orders. Because the theory identifies society with its commu-
nications, the global nature of modern communications requires it
to be a theory of world society, rather than one limited to a spatially
bound community.3And further, by identifying society with com-
munications, the theory uncomfortably places the biological and
2Thus, for example, Griffiths’s classic understanding of legal pluralism disputes all of
the general definitions and theoretical understandings from those who had engaged in
substantive analysis due to legal pluralism concerns (Griffiths 1986). There is certainly
neither one concept of legal pluralism nor wide agreement about its value, or the value of
the “legal pluralists project” or how the empirical studies that it is engaged with are linked
to a common theoretical understanding. For a full discussion of these background debates,
see Benda-Beckmann 2002; for an introduction to the collection of papers by the Project
Group Legal Pluralism that try to move this linking forward, see Benda-Beckmann, F and
K, 2006.
3With the exception of the few remaining societies with no access to the mass media
or world trade.
266 Legal Pluralism and Systems Theory
thinking human being outside of society. Its hermeneutics are
rooted not in the intentions of human actors, but in the meanings
generated by those actors through their participation as communi-
cators within subsystems of communication such as law, the
economy, science, politics, and education.
There is also the troubling issue of which version of the theory
should be utilized. The works of its creator,4Niklas Luhmann, span
40 years and include some 70 books and over 400 scholarly articles.
Over his lifetime he reacted to criticism, engaged in considerable
self-reflection, and made numerous adjustments to and restate-
ments of the theory.5Luhmann’s writing style is dense and often
enigmatic, with frequent resort to metaphors. In developing the
theory, Luhmann drew upon general systems theory, evolutionary
theory,6cybernetics, and semiotics. And if all this were not enough,
the theory shares some of the features of Marxism, in that alongside
the works of Luhmann, one also has the work of various “Luhman-
nians” who take a variety of approaches. These encompass “strict
literalists,” who insist that a correct interpretation of the theory
requires fidelity to Luhmann’s own works; “liberals,” who reinter-
pret and elaborate on his basic concepts; and “pragmatists,” who
take some of his concepts and seek to apply them to their own
subject areas.7In light of all this, it is hardly surprising that there
has been plenty of resistance, particularly in the Anglo-American
academy, to the use of systems theory in sociolegal studies. To those
coming to the theory for the first time (and not a few trying for the
second or third), the considerable effort required to become famil-
iar with the theory, with its network of linked understandings,
seems unlikely to justify the benefits, in terms of the new insights
that might result.
Taking the particular example of legal pluralism, we hope to
persuade readers that the effort is indeed worthwhile despite these
difficulties. We would position ourselves with the “pragmatists,”
among whom we also would place Gunther Teubner, though he
would also be considered one of the most important “liberals” who
4While the theory is attributed to Luhmann, like all theoretical development, it could
not exist without reference to an existing set of theoretical ideas to which it is linked, which
in this case must include general systems theory and, in particular, the work of Talcott
Parsons.
5For our purposes the most important changes are those made between Rechtssoziolo-
gie (originally published in 1972, and published in English as A Sociological Theory of Law in
1985) and Das Recht der Gesellschaft (originally published in 1995, and published in English
as Law as a Social System in 2004).
6See Maturana and Verela (1980, 1987), who explain the possibilities of evolution by
reference to the autopoietic nature of cellular life.
7See Priban (2010).
Nobles & Schiff 267

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