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COMPARATIVE LAW IN A

GLOBAL CONTEXT

This book presents a critical rethinking of the study of comparative law andlegal theory in a globalising world and proposes a new model. It highlightsthe inadequacies of current Western theoretical approaches in comparativelaw, international law, legal theory and jurisprudence, especially for study-ing Asian and African laws, arguing that they are too parochial and euro-centric to meet global challenges. Menski argues for combining modernnatural law theories with positivist and socio-legal traditions, building aninteractive, triangular concept of legal pluralism. Advocated as the fourthmajor approach to legal theory, this model is applied in analysing the his-torical and conceptual development of Hindu law, Muslim law, Africanlaws and Chinese law.

werner menski is Professor of South Asian Laws at the School ofOriental and African Studies, University of London, where he is also Chairof the Centre for Ethnic Minority Studies. He has published widely in thearea of South Asian Law. He has been a Visiting Professor at the PakistanCollege of Law, Lahore, the South Asia Institute, University of Heidelberg,the Tokyo University of Foreign Studies, and at ILS Law College, Pune,India.

COMPARATIVE LAW IN A

GLOBAL CONTEXT

The Legal Systems of Asia and Africa

Second Edition

WERNER MENSKI

cambridge university pressCambridge, New York, Melbourne, Madrid, Cape Town, Singapore, So Paulo

Cambridge University PressThe Edinburgh Building, Cambridge cb2 2ru, UK

First published in print format

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Werner Menski 2006

2006

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Published in the United States of America by Cambridge University Press, New York

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hardback

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Dedicated to Emeritus Professor Masaji Chibafor his eighty-sixth birthday

17 September 2005

CONTENTS

Preface and acknowledgments page xiTable of cases xvTable of statutes xviiList of abbreviations xx

part i Comparative framework

Introduction: Globalisation and Asian and Africanlegal systems 3

1 Comparative law and legal theory from a globalperspective 251.1 The culture-specific nature of law and respect for difference 261.2 Changing global scenario: from colonial transplant to

ethnic implant 371.2.1 International law and its unifying pressures 381.2.2 Comparative law as a harmonising handmaiden 461.2.3 Assumptions about uniformity: legal transplants and reception

of laws 501.2.4 Southern voices: from polite silence to post-colonial

reassertion 551.3 New globalisation: reverse colonisation and ethnic implants 581.4 Good practice in studying and teaching comparative law 661.5 World legal history: a deficient model 701.6 A model of pluralist, globality-conscious

legal education 75

2 Legal pluralism 822.1 Early conceptualisations of legal pluralism 852.2 The historical school of law 882.3 Early legal pluralism: Ehrlichs living law 922.4 Reluctant pluralism: Harts primary and secondary rules 982.5 Postmodern theories of legal pluralism 103

2.5.1 Moores concept of the semi-autonomoussocial field 104

2.5.2 Allotts three perspectives on law 108

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viii contents

2.5.3 Griffiths theory of legal pluralism 1132.5.4 Chibas tripartite model of law 119

3 Comparative jurisprudence: images and reflections of law 1293.1 Traditional natural law theories in outline 1313.2 Greek legal philosophy 1343.3 Roman legal philosophy 1393.4 Early and later medieval developments in Church law 1413.5 Re-evaluation of natural law during Renaissance and

Reformation 1463.6 Legal positivism 1503.7 Beyond positivism 160

3.7.1 Socio-legal approaches 1613.7.2 New natural law theories 168

3.8 A global working definition of law 173

part ii Regional comparisons in a global context

Introduction 193

4 Hindu law: the search for appropriateness 1964.1 A historical and conceptual overview 2004.2 The pre-classical stage: Vedic law (c. 1500 BC to c. 500 BC) 2044.3 Classical Hindu law (c. 500 BC to c. 200 AD) 2094.4 Late classical Hindu law (c. 500 BC to c. 1100 AD) 2224.5 Post-classical Hindu law (after 1100) 2344.6 Medieval Hindu law under Muslim domination 2374.7 Anglo-Hindu law 2394.8 Modern Hindu family law in India 2494.9 Hindu legal concepts and the Indian Constitution 259

4.10 Searching for composite appropriateness in postmodernity 273

5 Islamic law: Gods law or mens law? 2795.1 Understanding Islamic law from a legal pluralist perspective 2815.2 The Quranic base and its application 2895.3 The Prophets roles: leader, judge and guide 2945.4 Early Islamic law after the Prophets death 2985.5 Legal developments in the early Muslim empire:

the Umayyads 3035.6 Scholar-jurists and the Abbasids 3095.7 The central role of jurists 312

5.7.1 Schools of law and competing doctrines 3125.7.2 Shafii scheme to unify Muslim jurisprudence 3155.7.3 Hadith collections and the Schacht controversy 319

5.8 Continuing diversities after Shafii 3245.9 Judicial administration: qadis and muftis 330

5.10 Subsidiary sources of law 333

contents ix

5.11 The purported closing of the gates of ijtihad 3395.12 The shift towards legal reforms 3445.13 Turkey as a secular Muslim country 3545.14 Pakistani law and Islamisation 364

6 African laws: the search for law 3806.1 The denial of African culture and laws 3856.2 The search for African law and legal theory 3906.3 The nature of traditional African laws 404

6.3.1 Reflections of early knowledge 4046.3.2 African worldviews and their conceptual

implications 4076.3.3 African religions and socio-ritual processes 4136.3.4 African customary law as a self-controlling system 4216.3.5 Dispute settlement processes in pre-colonial Africa 435

6.4 African laws under colonial rule 4446.4.1 The process of colonisation 4456.4.2 The colonial impact on African customary systems 4536.4.3 The colonial impact on dispute settlement processes 459

6.5 African laws in the post-colonial period 4646.5.1 The continuing devaluation of African traditions 4666.5.2 Debates about custom in modern African laws 4706.5.3 Dispute settlement and the problems of finding

justice 4776.5.4 The unification debate as a tool for nation-building 480

6.6 The future 485

7 Chinese law: code and conduct 4937.1 Scholarly representations of Chinese laws 4957.2 Traditional Chinese worldviews in their social and

legal context 5027.2.1 The cosmic dimension: tao 5037.2.2 Self-controlled order, Chinese style: li 5057.2.3 The social context of traditional Chinese legal

regulation 5127.2.4 The place of customary laws 518

7.3 The classical Chinese legal system: codes and what else? 5217.3.1 Historical overview of codification in China 5217.3.2 The conceptual emphasis on penal law 5237.3.3 The key concept of fa and the influence of legalism 5257.3.4 Confucianisation of the law 531

7.4 The practical application of the law 5347.4.1 The imperial code system as a formal framework 5357.4.2 The Emperor as Son of Heaven 5387.4.3 The imperial legal machinery 5417.4.4 Avoidance of the law 5477.4.5 Social and ritual differentiation in the law 555

x contents

7.5 Post-imperial Chinese legal systems 5607.5.1 Resistance to modernising reforms 5617.5.2 Introduction of Western laws in the Republican

period 5647.5.3 The communist foundations of Chinese law 566

7.6 Law in the Peoples Republic of China 5697.6.1 The ambivalent approach to law in Maos China 5707.6.2 The post-Maoist reconstruction of Chinese law 5797.6.3 The new legal structures and the future 584

Conclusion: towards global legal realism 594

References 614Index 659

PREFACE AND ACKNOWLEDGMENTS

While the long-awaited first edition of this book was explicitly directed at aspecific student readership, it attracted much attention worldwide as a pio-neering model of global legal analysis. This revised second edition venturesfurther beyond the still somewhat exotic ambit of comparative legal educationpursued at the School of Oriental and African Studies (SOAS) in the Universityof London. It places legal pluralism more confidently into the mainstream studyof comparative law, addressing some of the serious deficiencies of comparativelaw and legal theory in a global context.

Having read much of what appeared since 2000 in this fertile but still largelyuncultivated field, I feel empowered to write with more clarity about the chal-lenging experience of applying in practice what some writers, particularlySantos (1995), Twining (2000) and Cotterrell (2003), have been suggesting asviable strategies to promote plurality-sensitive, globality-conscious legal the-ory. There has been growing recognition of the fact that academic activities inthe complex fields of legal theory and comparative law remain underdevelopedand still too eurocentric. As Western academics we seem, by our own historiesand training, to be too wedded to ways of perceiving and studying law that donot take sufficient account of the culture-specific social embeddedness of legalphenomena in the world. We continue to ignore principles and models of goodpractice that have been developed elsewhere, particularly in Asia and Africa.As lawyers, we need to accept that law in its various manifestations all overthe world is, and will always remain, culture-specific (Allott, 1980; Twining,2000). We fail to admit that globalisation does not primarily lead to universalhomogenisation, but rather increased legal pluralism in ways that make legalresearch ever more challenging and complex. Postmodern, globality-focusedlegal scholarship is a tough enterprise.

Twining (2000: 30) has argued that, unlike the science of geology, which issubject to universal physical laws, law is culturally relative. This basic obser-vation puts a huge obligation on legal theorists and comparative lawyers toeducate todays postmodern readership, and our current generation of stu-dents, about how to understand law itself and its various manifestations in atruly global context. While none of us can cover everything, some tasks aredo-able within a lifetime. There is an urgent need to research particularly how

xi

xii preface and acknowledgments

the legal systems of Asia and Africa react today to the demands of globalisation,developing in many cases in ways that we did not expect a few decades ago. Wemay find it hard to accept this today, because they often do not follow us andour ideas, but develop their own hybrid methods of dealing with legal issues.In understanding such complex processes of pluralisation, we can count onthe active participation of many researchers and teachers from the South. Butthey, too, often require reminders that globalisation is today not just leadingtowards a uniform world legal order, given the strong ideological impact ofexisting eurocentric and uniformising scholarship in the fields of legal theory,comparative law and increasingly international law.

The present study remains geared towards combining inquisitive interroga-tion of Asian and African legal systems in a comparative global context with aself-critical questioning of dominant Western assumptions about the nature oflaw itself. The theoretical critique of global jurisprudence of the first edition isretained, and is now interwoven with arguments presenting legal pluralism asan integrated fourth theoretical approach that combines and yet transcends thefamiliar three dominant major theories in the study of law worldwide, namelynatural law, legal positivism and socio-legal approaches. In four separate his-torically based chapters, the study provides a detailed historical overview ofmajor legal systems of Asia and Africa to critically examine how these legalsystems in the countries of the South are developing today in respect of myproposed theoretical approach.

The introduction to this revised edition focuses explicitly on globalisationand its pluralising effects in the legal field, while chapter 1 retains its focuson comparative methodology and emphasises the changing understanding ofthe nature of law in todays globalising world. The former chapter 2 has beensplit into two substantive chapters. The new chapter 2 allows for a more spe-cific focus on legal pluralism and a global pluralistic legal theory, while thenewly carved-out chapter 3 reassesses the more familiar ground of standardlegal theories in their eurocentric, Western-dominated forms. Chapters 47then discuss, in turn, the historical evidence of, and theoretical contributionsmade by, major legal systems of Asia and Africa, focusing on Hindu, Muslim,African and Chinese laws. The conclusion emphasises the extent to which aglobally focused, plurality-conscious jurisprudence accounts for the evidencecoming from non-European legal systems about the intrinsically plural natureof all laws in the world, no matter how globalised and commercially inter-linked they may have become at a certain formal level. The study proposes thatas law continues to be culture-specific all over the world, the key challenge forlegal theorists remains to develop a globally valid model of legal analysis ratherthan more studies on legal eurocentrism. This should permit a deeper inves-tigation of the ways and forms in which hybrid legal phenomena worldwideemerge and are reproduced as a result of interplay between local and global legalinputs and competing elements within the internally plural phenomenon of

preface and acknowledgments xiii

law. The dynamic interplay and competition of different perspectives in and onlaw requires constant negotiation in a spirit of tolerance of other viewpoints,rather than myopic assertion of idiosyncratic positions. Plurality-consciouslegal construction and debate will remain a constant challenge everywhere.

This book, with departmental plans for its production under discussionsince the early 1980s, should have been a co-operative effort involving severalregional specialists. However, many factors inhibited co-operation and ulti-mately prevented a joint project from materialising. The pressures of modernacademic life have become such that even speaking to ones colleagues hasbecome a luxury and the e-mail, convenient as it may be, has replaced face-to-face discussion. In addition, modern academic structures do not sufficientlyencourage co-operative research efforts across regional boundaries. In the end,this book had to be written, and now rewritten, by one person. This actuallyhelped, looking back at this exciting experience, to achieve greater analyticalcoherence and depth, and to aid comparability.

Having listened to the lectures of many regional experts over the past twenty-five years, some of them now deceased, while others moved on or retired, I owean enormous debt of gratitude especially to Professors J. Duncan M. Derrett,Noel J. Coulson (192886) and Antony A. Allott (19242002), stalwarts ofcomparative legal studies at the University of London. Each in his own waymade sure that the important subjects covered in this book would not beneglected. Many others have contributed to the comparative law programmeat SOAS over time, in particular the key course on Legal Systems of Asia andAfrica. Their names are too numerous to mention here. They made someinput into the present work, duly acknowledged in footnotes and referencesto published writing, where it exists. Professor Esin Orucu at the University ofGlasgow, Professor S. P. Sathe, Honorary Director of the Institute of AdvancedLegal Studies in Pune, and Professor Humayoun Ihsan, Principal of the PakistanCollege of Law in Lahore, deserve special thanks for engaging discussions aboutcomparative law and global legal issues.

Several helpful research assistants contributed to the first edition, particu-larly Clare Fazal, Malachi Broome, Eric Bakilana and Samantha Pearce, whoseunfailing support helped to make writing this book an enjoyable experience ofstudy and learning in an environment where co-operation and frank exchangeof views and perspectives needed to be protected from parochial challenges.The present revised edition has benefited from the critical comments of Pro-fessor John Bell of Cambridge University and a number of other reviewers. Thepartly sceptical feedback given by some colleagues and by many law students atSOAS between 2000 and 2005, especially the classes in Legal Systems of Asia andAfrica of 20034 and 20045, are gratefully acknowledged. All of this enlivenedfurther ongoing thought processes, to which especially Dr Prakash Shah, DrIhsan Yilmaz, Dr Lynn Welchman and Nidhi Gupta have contributed. Thisedition was updated with the assistance of Shahin Baghaei, Biswajit Chanda,

xiv preface and acknowledgments

Sameer Bhawsar and Jeremy Brown, who also helped me with the graphics. Ialso thank Finola OSullivan, Jane ORegan and their colleagues at CambridgeUniversity Press for professional guidance and a smooth production process.

The subject matter covered in this book is of such enormous dimensionsthat nobody could hope to cover every aspect. Many selections had to be madein view of constraints of time and space. Many difficult technical terms fromdifferent languages needed to be used; they are found with explanations in theglossary. Any mistakes and omissions are of necessity mine, and I shall continueto be grateful for constructive criticism from readers, which will in turn it ishoped lead to an updated and revised third edition.

TABLE OF CASES

Abdul Waheed v. Asma Jahangir PLD 1997 Lah 301 306, 373, 568

Abdul Waheed v. Asma Jahangir PLD 2004 SC 219 374

Alhaji Mohamed v. Knott [1969] 1 QB 1; [1968] 2 All ER 563 467

Ali Nawaz Gardezi v. Muhammad Yusuf PLD 1963 SC 51 377

Allah Rakha v. Federation of Pakistan PLD 2000 FSC 1 54, 375, 378, 379

Antony v. Commissioner, Corporation of Cochin 1994(1) KLT 169 271

Attorney-General for Nyasaland v. Jackson [1957] R&NLR 443 463

Baby v. Jayant AIR 1981 Bombay 283 254

Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802 266, 268

Bandhua Mukti Morcha v. Union of India AIR 1992 SC 38 266, 268

Bhaurao Shankar Lokhande v. State of Maharashtra AIR 1965 SC 1564 254, 256

Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly AIR 1986 SC

1571 270

Collector of Madura v. Moottoo Ramalinga Sathupathy (1868) 12 Moores Indian

Appeals 375 248

Danial Latifi v. Union of India (2001) 7 SCC 740 276, 277

Faheemuddin v. Sabeeha Begum PLD 1991 SC 1074 375

Forasol v. Oil & Natural Gas Commission AIR 1984 SC 241 263

Francis Coralie Mullin v. The Administrator, Union Territory of Delhi AIR 1981 SC

746 271

Jesmin Sultana v. Mohammad Elias (1997) 17 BLD 4 352

Joyita Saha v. Rajesh Kumar Pandey AIR 2000 Cal 109 255

Kunhikannan v. State of Kerala 1968 KLT 19 15, 202, 219

M. C. Mehta and another (1987) 1 SCC 395 263

M. Govindaraju v. K. Munisami Gounder AIR 1997 SC 10 256

Mohd Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945 275, 305, 352

Moottoo Ramalinga case, see Collector of Madura

Nebu John v. Babu 2000(1) KLT 238 271

Noor Khan v. Haq Nawaz PLD 1982 FSC 265 374, 377

P. Mariammal v. Padmanabhan AIR 2001 Madras 350 256

Partap Singh v. Union of India AIR 1985 SC 1695 201

People United for Better Living in Calcutta v. State of West Bengal AIR 1993 Cal 215

271

xv

xvi table of cases

Pratheesh Fuels v. Indian Oil Corporation Ltd 2002(1) KLT 296 205

Ramakrishnan v. State of Kerala 1999(2) KLT 725 221, 271

Rani v. The State PLD 1996 Kar 316 371

Rattan Lal v. Vardesh Chander (1976) 2 SCC 103 56

Rudul Sah v. State of Bihar AIR 1983 SC 1086 268

S. v. Makwaneyane 1995 (3) SA 391 489

Safia Bibi v. The State PLD 1985 FSC 120 374

Saima Waheed case, see Abdul Waheed v. Asma Jahangir

Shah Bano case, see Mohd Ahmed Khan v. Shah Bano Begum

Singh v. Entry Clearance Officer, New Delhi [2004] INLR 515 60, 467

S. P. Gupta v. President of India AIR 1982 SC 149 268

State v. Dosso PLD 1958 SC 533 153, 158

Sumitra Devi v. Bhikhan Choudhary AIR 1985 SC 765 254

Surjit Kaur v. Garja Singh AIR 1994 SC 135 254, 256

T. Damodhar Rao v. The Special Officer, Municipal Corporation of Hyderabad AIR

1987 AP 171 270

V. Bhagat v. D. Bhagat AIR 1994 SC 710 258

TABLE OF STATUTES

Administration of Justice Regulation, 5 July 1781 [India] 247

Caste Disabilities Removal Act, 1850 [India] 243

Child Marriage Restraint Act, 1929 [India] 243

Civil Code of Egypt, 1949 350

Civil Code on Private and Commercial Law, 1929-31 [China] 565

Code of Civil Procedure, 1932 [China] 565

Code of Commercial Procedure, 1861 [Ottoman Empire] 355

Code of Criminal Procedure (Amendment) Act, 2001 [India] 276, 277

Code of Maritime Commerce, 1863 [Ottoman Empire] 355

Commercial Code, 1850 [Ottoman Empire] 355

Community Courts Act, 2003 [Namibia] 54, 477

Constitution (Forty-Second Amendment) Act, 1976 [India] 265, 269

Constitution of China, 1982 584

Art. 5 584

Constitution of India, 1950 197, 201, 203, 250, 259, 581

Art. 12 270

Arts. 14-16 266

Art. 21 266, 270, 271

Art. 32 267

Art. 39(a) 269

Art. 44 250, 260, 274

Art. 48-A 269

Art. 51-A 250, 269

Art. 226 267

Constitution of Pakistan, 1973 371

Art. 2-A 371, 372

Criminal Procedure Code, 1973 [India]

s. 125 275

Dissolution of Muslim Marriages Act, 1939 [India] 275, 351,

368

Enforcement of Shariah Act, 1991 [Pakistan] 374

Ethiopian Civil Code, 1960 47, 483, 484

Government of India Act, 1935 259

xvii

xviii table of statutes

Hindu Adoptions and Maintenance Act, 1956 251

Hindu Marriage Act, 1955 [India] 251, 274

s. 3 254

s. 5 54

s. 7 253

s. 7(1) 253

s. 7(2) 253, 255, 256

s. 8(5) 254

s. 11 54

s. 17 54

s. 29(2) 249

Hindu Marriage (Amendment) Act, 1964 [India] 252

Hindu Minority and Guardianship Act, 1956 [India] 251

Hindu Succession Act, 1956 [India] 250, 251

s. 14 250

Hindu Widows Remarriage Act, 1856 [India, Pakistan, Bangladesh] 243

Hindu Widows Remarriage (Repeal) Act, 1983 [India] 243

Hindu Womens Right to Property Act, 1937 [India] 250

Hudood Ordinances, 1979 [Pakistan] 303

Indian Companies Act, 1866 242

Indian Divorce (Amendment) Act, 2001 201, 274

Indian Evidence Act, 1872 [India, Pakistan] 368

Indian Penal Code, 1860 242, 243, 368, 449, 462

Kerala Joint Hindu Family System (Abolition) Act, 1975 [India] 250

Land Code, 1868 [Ottoman Empire] 355

Land Code, 1930 [China] 565

Marriage Law of the Peoples Republic of China, 1950 [China] 572

Art. 1 572

Art. 2 573

Art. 6 573

Art. 8 573

Marriage Laws (Amendment) Act, 1976 [India] 252

Muslim Family Laws Ordinance, 1961 [Pakistan, Bangladesh] 167, 372, 374, 376

s. 6 54, 375, 376

s. 7 376, 377, 378

Muslim Personal Law (Shariat Application) Act, 1937 [India, Pakistan,

Bangladesh] 368

Muslim Women (Protection of Rights on Divorce) Act, 1986 [India] 276, 277

Objectives Resolution, 1949 [Pakistan] 369, 370, 371, 372, 378

Offence of Zina (Enforcement of Hudood) Ordinance, 1979 [Pakistan] 374, 377

Ottoman Civil Code, 1877 356

Ottoman Law of Family Rights, 1917 351, 358, 360

Parsi Marriage and Divorce (Amendment) Act, 1988 [India] 201

table of statutes xix

Penal Code, 1858 [Ottoman Empire] 355

Qanun-e-Shahadat Ordinance, 1984 [Pakistan] 374

Qisas and Diyat Ordinance, 1990 [Pakistan] 374

Revival of the Constitution of 1973 Order, 1985 [Pakistan] 371

Sati Regulation of 1829 [India] 243

Special Marriage Act, 1954 [India] 250, 252

Traditional Courts Act, [Malawi] 477

Tunisian Law of Personal Status, 1956/7 302

Turkish Constitution, 354

ABBREVIATIONS

AD Anno Domini

ADR Alternative dispute resolution

AIR All India Reporter (India)

AP Andhra Pradesh

BC Before Christ

BJP Bharatiya Janata Party

BLD Bangladesh Legal Decisions

Cal Calcutta

CLR Pakistan Civil Law Reports

FB Full Bench

FSC Federal Shariat Court (Pakistan)

INLR Immigration and Nationality Law Reports (UK)

J Judge

Kar Karachi

KLT Kerala Law Times (India)

Lah Lahore

LJ Lord Justice

MFLO Muslim Family Laws Ordinance, 1961 (Pakistan)

NUJS National University of Juridical Sciences, Kolkata

PLD Pakistan Legal Decisions (Pakistan)

PRC Peoples Republic of China

Rs. Rupees

SC Supreme Court

SCC Supreme Court Cases (India)

SOAS School of Oriental and African Studies

xx

PART I

Comparative framework

INTRODUCTION: GLOBALISATION AND ASIAN ANDAFRICAN LEGAL SYSTEMS

In the late twentieth century, globalisation seems to have become the clicheof our times (Held et al., 1999: 1). Linked to postmodernism, it has given riseto a large body of writing in many academic subjects.1 While postmodernismremains heavily contested as a concept and methodology, it seems that globali-sation as a widely observable fact is not seriously challenged as a phenomenon.However, scholars argue vigorously about its consequences, and many debatesfocus on the role of the nation state in newly conceived contexts of global inter-connectedness.2 There is as yet little discussion about how globalisation relatesto legal theory and understandings of law. In common parlance, the term cre-ates assumptions about the desirability of increased efficiency in processes ofglobal communication. We immediately think of easier travel, homogenisationof trade laws and harmonisation or integration of all kinds of rules, easingcommunication processes by recourse to one language, one pattern of doingbusiness, and so on. This is matched by the tempting assumption that therewould be less conflict if only all humans thought alike, followed uniform moralstandards and respected universal human rights.

However, is this realistic in view of universal plurality? Much universalisedthinking about globalisation goes too far in its uncritical acceptance of theadvantages of uniformisation. It is rather unreal to expect that the wholeworld would ever follow one rule system, one language and culture, or onelaw. George Orwells famous writings in Animal Farm (1945) and in 1984 cas-tigated fake assertions of equality underpinning domination by elites.3 Morerecently, Legrand (1997a: 61) has noted that globalisation of the world cannot

1 Robertson (1986; 2000; 2003) is a major contributor to the debates. From an Indian soci-ological perspective, Doshi (2003: 3636) contains a useful overview on the history ofglobalisation. A good analysis of the complex political, economic and cultural processesis provided by Held et al. (1999). Twining (1999). Twining (2000) mainly surveys writingconcerned with legal theory, while Harding and Orucu (2002: 30511) produce a helpfulshort bibliography of comparative law.

2 Held et al. (1999) distinguish three broad accounts: hyperglobalists (predicting the end ofstate power), sceptics (arguing that globalisation strengthens state powers) and transfor-mationalists (seeing an uncertain outcome, but a continuing role for the state).

3 Schott (1995: 39) refers to Orwells famous phrase that [a]ll animals are equal, but someanimals are more equal than others.

3

4 comparative framework

change the reality of varied historical traditions. While global uniformity isan idealistic vision, it would not only be boring, taking away all the colour-ful differences of human existence, but also intrinsically repressive. For, whoshould ultimately decide the criteria for an envisaged globally uniform system?Whose values, rules and norms should be chosen to dominate the world? Towhat extent is locally coloured situation-specificity more conducive to jus-tice than following universally fixed models? At the end of the day, what isjustice?

The present study explores how globalisation concepts today feed from, andin turn impact on, conflicting conceptualisations of law and justice in a globalcontext. With specific reference to the legal systems of Asia and Africa, it drawsattention to a notable conflict of visions and the critical divergence of two basicassumptions among scholars and in the general public. The central questionpursued here, through an interrogation of legal theories, is whether the phe-nomenon of globalisation should and can be premised on a vision of globaluniformisation, or whether a vision that emphasises legal pluralism and thepluralising effects of globalisation processes is more realistic, so that globalisa-tion ends up as almost unlimited diversity, indeed as glocalization (Robertson1995). Given that the current world scenario points towards growing diver-sity of local solutions despite the ongoing search for global unification,4 thisstudy argues that insisting on anti-pluralist unification visions may be mis-guided and quite dangerous for global peace and well-being. In todays world,the most evident conflicting claims arise from competing visions of globaliseduniformisation,5 made by American-led initiatives like the War on Terror andextremist militant versions of Islamic Jihad, leading to mutual accusations ofterrorism by George Bush and Osama bin Laden as protagonists of two opposingvisions of globalisation that seem deficient in liberality. To an extent, this par-allels the conflict of civilisations theories proposed by earlier writers. Theseseem flawed, from a global perspective, because they focused too narrowlyon Christian Muslim contests over global supremacy, ignoring many otherglobalising claims in the world.6 The public perception of a bifocal dispute ofWestern and Muslim visions is too simplistic and dangerous, far too fuzzy andseverely limited what about all the other perspectives?

Whatever the precise nature of the existing conflict between different visionsof uniformisation, it seems that peaceful co-existence in a globally intercon-nected world will not be possible without allowing space for and recognition

4 The newly constituted laws of the Republic of South Africa and of Namibia offer amplematerial for instructive case studies of culture-specific plural reconstruction, covered hereonly in passing.

5 In this context, Werbner (2004: 451) speaks of utopian discourses in relation to millennialIslam.

6 See in particular Huntingtons theory of a clash of civilisations and Fukuyamas (1989)questions about the end of history.

introduction 5

of different visions and thus respecting, as Lyotard (1984: 67) puts it, both thedesire for justice and the desire for the unknown. Instead of asserting the supe-riority of this or that vision of globalisation, which one then seeks to imposethrough various law-making processes, scholars and policy-makers need toacknowledge the critical role of constant plurality-conscious negotiation ofcompeting perspectives in a spirit of liberality. Law, the present study argues,is much more than a body of rules that can simply be imposed on others bythose who dominate the formal processes of law-making. Much current legalscholarship remains too closely focused on outdated, positivistic approaches,still proudly claiming their own superiority over all other perspectives. Theonerous task of legal theory in terms of cultivating respect for worldwide plu-rality rather than pushing for globalising uniformity is therefore enormous.Recent writing has begun to express this more clearly. While Lyotard (1984: 61)emphasises dissension and notes that [c]onsensus is a horizon that is neverreached, Melissaris (2004: 76) concludes:

The study of the legal must be directed towards the discovery of alternativeperceptions of the world and justice and of different practices of solvingpractical problems by accommodating competing interests as well as meet-ing the prerequisites of substantive justice. The question of law and justicethen becomes one concerning our whole way of life, how we perceive andplace ourselves in our surroundings.

Existing theoretical approaches, not only among lawyers, tend to be far tooparochial and eurocentric, failing to take a global, plurality-conscious perspec-tive. Legal scholarship, it seems, lags seriously behind reality, which remainsmarked by immensely deep plurality. Global migration patterns, old and new,and multiple exchanges between different states, economies, societies and legalsystems, on a variety of scales and through different methods, have over timecreated transnational, inherently plural, multi-ethnic and multicultural legalenvironments, which are becoming ever more prominent in reality today. Farfrom creating legal uniformity worldwide, reception of mainstream Westernlaws has been leading to an immensely complex further pluralisation of laws allover the world.7 Yet, mainstream legal science continues to behave as thoughglobalisation simply means uniformisation, resisting evidence, from every-where in the world, that global harmony and understanding will only beachieved by greater tolerance of diversity, not by enforced uniformity. To someextent, insistence on liberal approaches remains a viable option, but how liberalcan liberals be when it comes to recognising the views and values of others?Glenn (2000; 2004), Twining (2000) and others have provided convincing argu-ments for the recognition of all legal traditions in the world and for a systematic

7 This is acknowledged in recent writing, e.g. Orucu (1999) and even transpires from a carefulstudy of Watson (1993).

6 comparative framework

rethinking of legal theory. The present study develops such encouraging sug-gestions,8 applying and extending them specifically to the legal systems of Asiaand Africa.

It is evident that globalisation and legal theory are today hugely importantsubjects (Twining, 2000: 88) and that a plurality-focused international legalscience is possible (Zweigert and Kotz, 1998: 45). However, while some tradi-tional assumptions and prevailing orthodoxies are beginning to fade and muchrethinking is taking place (Harding and Orucu, 2002: vii), it has proved difficultto reorient traditional legal concepts of theory and analysis.9 Twining (2000:232) notes:

Lawyers and law students encounter normative pluralism every day oftheir lives, in legal and non-legal contexts. Yet legal pluralism is gener-ally marginalised and viewed with scepticism in legal discourse. Perhapsthe main reason for this is that for over 200 years Western legal theory hasbeen dominated by conceptions of law that tend to be monist (one inter-nally coherent legal system), statist (the state has a monopoly of law withinits territory), and positivist (what is not created or recognised as law by thestate is not law).

Combining comparative law and legal theory, the present study attempts toovercome such narrowly defined traditional legal methods. It emphasises theneed for recognition of legal pluralism and therefore of difference, developingmethods to account for their effects on legal theory and comparative law. Theacademic discipline of law, as conceptualised and studied so far, has remainedtoo eurocentric and legocentric (focused on the allegedly central role of state-made law in society and human development) to be able to meet global chal-lenges.10 Twining (2000: 135) emphasises that [u]nderstanding law involvestaking account of the realities of those with power over it and those whoare subject to it and many others besides. Understanding law requires multiplelenses.11 Zweigert and Kotz (1998: 46) suggest that [i]f law is seen functionallyas a regulator of social facts, the legal problems of all countries are similar and

8 De Cruz (1999) remains self-consciously limited, still focused on the dominant legalfamilies approach. Conscious of the emerging new world order, the concluding chapter(pp. 47596) goes well beyond eurocentric visions.

9 Freeman (2001: 9201) notes much criticism of legal pluralism and suggests that it makesthe drawing of a clear line between state and society problematic. Zweigert and Kotz(1998: 334) diagnose legal science as sick and suggest that comparative law approachescan cure it. But, as we shall see, most comparative lawyers have ideological problems withlegal pluralism.

10 As a sociologist of law, Anleu (2000: 10) suggests that law or the law is often taken forgranted as a concept and recommends that the numerous dimensions of law must be takeninto account in analysing the role of law in social change.

11 Smart (1989) argues in her feminist analysis that law has failed in this respect by projectingitself as unified, while privileging male perspectives.

introduction 7

call for a universal legal science which clearly implies plurality consciousness.From the perspective of anthropology and law, Sack and Aleck (1992) presenta sharp critique of legal scholars reliance on techniques of self-definition andword plays that constantly shut out plurality and hide the social embedded-ness of all law. Such comments by leading scholars in various fields indicategrowing awareness that the traditional focus on legal positivism and tradi-tional natural law theories has tended to marginalise the social dimensions oflaw.12 The present study presents a methodological approach that integratesthe social and ethical elements of law into a necessarily pluralist legal analysisto understand the pervasive role of law in its various social contexts. Whilea plurality-conscious legal theory cannot afford to overlook or disregard anyone of the major theoretical approaches to law that have been developed overtime, a major challenge for legal theory remains to make sense of how all theseelements interact.

Twining (2000) highlights how closely law is everywhere linked with mattersof daily life and how the boundaries between what is law and what is not laware not really clear at all. Stating ex cathedra that law is pervasive in society(Twining, 2000: 1), his analysis sets the scene for a pluralistic vision of legaltheory which includes a variety of perspectives and a multiplicity of levels ofgenerality (p. 13). His brief initial discussion of globalisation reflects the richsocial science literature, finding that [t]hese processes tend to make the worldmore interdependent, but this does not mean that we are moving inexorablytowards a single world government nor does it mean the end of nation-states asthe most important actors (p. 5). Again, this contains a finding of increasingpluralisation rather than global homogenisation. While it is confirmed that thewider literature on globalisation is fairly recent, by the late 1990s, words likeglobal, globalisation and globalism were as much in vogue in law as in otherdisciplines (p. 3).

Portraying globalisation theory as a new academic industry, Twining (2000:5) refers to the important work of Santos (1995) and his distinction of glob-alized localism and localized globalism. Law, from this perspective, is seen asinterlinked with other aspects of life, and cannot be treated as a closed system.Twining (2000: 7) reports that there has been a good deal of self-criticismwithin disciplines about the extent to which they have over-emphasised theimportance of boundaries and have treated societies, states and tribes asself-contained, decontextualised units. While anthropologists and others havelearnt some lessons from this, many lawyers still favour perceptions of closedsystems and rely particularly on the supremacy of state-made, official law as

12 Leading jurists (Chiba, 1986; 1989; and Hinz, 2003a) argue now that all law needs to be seenas linked to anthropology. However, Sack and Aleck (1992: xx) suggest that anthropologistsare unlikely to play the prince who will deliver the princess of western legal theory froma hundred years of positivistic coma.

8 comparative framework

a regulator of social and other relations.13 This presents deep methodologicalproblems, sharply identified by Twining (2000: 8):

The general theme is clear across disciplines: the processes of globalisationare fundamentally changing the significance of national and societal bound-aries and generally, but not inevitably, making them less important. Thisrepresents a challenge to all black box theories which treat nation statesor geographically bounded societies or legal systems as discrete entitiesthat can be studied in isolation either internally or at the internationallevel.

Most writing on globalisation ignores its legal dimensions and, with few excep-tions,14 legal scholarship has yet to tackle the issues that arise. Twining (2000: 2)writes sceptically of the loose and possibly rhetorical label of globalisation,indicating that lawyers experience problems in understanding the compleximplications of globalisation and may have been too quick to welcome themuncritically as an aspect and consequence of modernisation. Twining (2000:194244) presents the concept of interlegality, developed by Santos (1995), asa significant new perspective, while Glenn (2000: 328; 2004: 354) prefers thenotion of interdependence, or of non-separation . . . as the most fundamentalidea in the existence of major, complex, legal traditions. It is the fundamental,underlying characteristic of multivalence.15

However modern or post-modern concepts like multivalence, interdepen-dence and global interconnectedness may appear, they are hardly new. Oneof the leading writers on globalisation, Robertson (2003: 3), cautions that wehave no reason to congratulate ourselves today for having invented or createdsomething that people in the past did not realise or could not know:

[G]lobalization is more than just McWorld or Westernization. It is abouthuman interconnections that have assumed global proportions and trans-formed themselves. If we focus on globalization simply as a modern strategyfor power, we will miss its historical and social depths. Indeed the originsof globalization lie in interconnections that have slowly enveloped humanssince the earliest times, as they globalized themselves. In this sense, global-ization as a human dynamic has always been with us, even if we have beenunaware of its embrace until recently.

13 Cownie (2004) reports that most English lawyers these days have developed a high degreeof awareness of the social interrelatedness of law, but are often not feeling comfortableenough on the basis of their own black letter training to attempt socio-legal researchthemselves.

14 Apart from Twining (2000) see especially Griffiths (2002) and Flood (2002).15 Glenn (2004: 351) explains that multivalence asserts that all categories are vague and all

efforts of separation are arbitrary and artificial. He contrasts this with bivalent thought,which implies clear boundaries between distinct and separate concepts, and preventsmixing and confusion over the boundaries, once they are created. It is very logical, in theway western people have been trained to be logical (p. 351).

introduction 9

While modern information technology has made huge differences to how weconnect with others, modern social scientists have tended to overlook evidenceof ancient concepts and early regional, if not global, interaction patterns. Trac-ing the history of globalisation, Waters (1995) finds that the term global hasbeen used for about 400 years,16 but that globalisation as a technical term didnot exist until about 1960 and was only accepted more widely during the 1980s.A diachronical global interdisciplinary analysis needs to be aware that all majorworld religions operate on the assumption that their God or gods are moreor less in charge of the whole world, and thus make universal and holisticclaims, which then of course contradict each other. A sense of being connectedworldwide has always united the global Muslim community (ummah). AncientHindu philosophy, evidence of which is well preserved in Sanskrit texts fromat least 1500 BC onwards, perceived the entire cosmos as an interlinked wholeand did not limit itself to law, politics, environmental pollution or individ-ual salvation. Similar holistically focused global perspectives existed in ancientChina, Japan, Africa and elsewhere, but much of such early evidence remainsinaccessible, coming from societies and cultures based on oral transmission ofknowledge and wisdom. But orality does not mean that brains in those ancientdays (or indeed today) were less sophisticated; in fact many people argue pre-cisely the opposite.17

Scholars have drawn close links between postmodernity and global society,so that globalisation is often perceived as a prominent consequence of post-modern, post-industrial socio-economic change. Doshi (2003: 163) capturesthis in typical optimistic tones which, we should note, stray into questionablelegal assumptions:

Information and knowledge have established linkages between people ofthe world. Now, the belief that humankind can be turned into a universalcommunity, is getting shape with the processes of globalization and tech-nological knowledge. It appears that the world can develop a cosmopolitanorder based upon liberty, justice, and equality for all humanity. Globaliza-tion, thus, is a new characteristic of post-industrial society.

In a similar vein, there is much talk of the global village,18 but perhaps, soTwining (2000: 4), [w]e are now living in a global neighbourhood, which isnot yet a global village and everything in this ongoing process is in flux:

16 This is linked to international sea trade in colonial contexts but it is often forgotten thatsuch exchanges, documented in a large specialist literature, took place much before colonialtimes.

17 On the dynamic nature of oral traditions, see Glenn (2000: 78) and chapter 6 below onAfrican law.

18 De Cruz (1999: 29) refers to this as the catchphrase of the 1980s and early 1990s. Doshi(2003: 351) starts his chapter on globalisation stating that [w]e are now on the road tothe formation of a global society, tracing its legacy back to the Enlightenment era andportraying it as the only alternative for the world.

10 comparative framework

In the present context the term globalisation refers to those processes whichtend to create and consolidate a unified world economy, a single ecologicalsystem, and a complex network of communications that covers the wholeglobe, even if it does not penetrate to every part of it. Anthony Giddenscharacterises the process as the intensification of world-wide social rela-tions which link distant localities in such a way that local happenings areshaped by events occurring many miles away and vice versa.19

Doshi (2003: 351) speaks in this context of surface events, which significantlyinfluence our perceptions of what globalisation may or may not achieve, suchas the end of the Cold War and the collapse of communism and the SovietUnion.20 One must now add to this list the consequences of the 11 September2001 destruction of the New York Twin Towers as a symbol of globalisation andthe War on Terror.

The existing literature recognises that globalisation can mean lots of dif-ferent things. Glenn (2000: 47; 2004: 51) introduces the subject by saying that[g]lobalization, or world domination, is usually thought of as a single process,but immediately warns that [t]he problem with this analysis of the state of theworld is that there are a number of globalizations going on . . . There is also, forexample, globalization in the form of Islamization.21 Especially from a NorthAmerican perspective, it appears that globalisation can easily be perceived asAmerican domination of the world, a tempting thought for some, but whatabout all others? From a Southern perspective, Doshi (2003: 352) warns:

There is no single globalization. There are several globalizations. Its avataris plural, its processes are historical and its outcomes are varying. And,therefore, instead of calling it globalization, we should call it globalizations.Globalization, the world over, does not have a cakewalk. Challenges givento it are by no means ordinary. There is always a fear that the nation-statewould lose its identity and importance. And, who knows, the state itselfwould die. There is yet another fear that the gap between the rich and thepoor would increase. It is also argued that globalization is nothing shortof a cultural bombardment on the developing countries by the westernmodernity capitalism, industrialism and the nation-state system.

This highlights the complexity of processes of globalisation, including bothmodernisation and postmodernisation. The result is a complex plural phe-nomenon whose economic elements may be dominant, but encompass allother aspects of life, including law.22 Modernisation advocated prominently

19 Twining (2000: 4). The reference here is to Giddens (1990: 64).20 Riles (2001: 14) emphasises the same point with regard to how comparative lawyers work

and think.21 Later on, Glenn (2000: 49; 2004: 53) notes that as there are multiple globalizations, so

there are multiple regionalizations.22 Doshi (2003: 3646) reports on Robertsons (2000) earlier mapping of globalisation his-

tory, which Robertson (2003) now discusses differently as a model of three waves.

introduction 11

an ideology of progressive linear development, spearheaded by the nation-state and its instrumentalist use of law as a tool for reform, leading to themuch-revised law and development debates of the past few decades (Trubekand Galanter, 1974; Vyas et al., 1994). Postmodern theories question modernistEnlightenment claims in relation to universality and certainty in reason, truth,knowledge and reality, to the extent that modernity is no longer seen as provid-ing a global solution for human existence and a universal path for understand-ing the world (Doherty et al., 1992). Challenging the modernist Enlightenmentideal of universal true knowledge, which was thought to be achieved throughthe exercise of objective human reason, postmodernism suggests that truth,knowledge and even reality are all culturally relative and that human rational-ity is heterogeneous and diverse. As a result, [t]he grand narrative has lost itscredibility (Lyotard, 1984: 37). Treating almost everything as subjectively con-structed, postmodernism celebrates a plurality of perspectives and emphasisesthe fallacy of imagining complete, universal knowledge, thus leading (for someobservers) to nihilism, pessimistic fatalism, and a crisis of representation inseveral social science subjects (Marcus and Fisher, 1986).23 Postmodern legalwriters acknowledge that postmodern theory protests against the totalisingmonopolisation of certain types of rationality and against universalist con-cepts that raise false allegations of absoluteness (Peters and Schwenke, 2000:8012), while most jurists tend to see this as nothing less than a rejection ofthe whole liberal project (Freeman, 2001: 18).

Postmodernism is methodologically closely linked to postcolonialism,24

which specifically involved challenging the colonial vestiges of eurocentrismand Western ethnocentricity in dominant discourses about non-Western soci-eties. However, much of the current debate on globalisation seems still inspiredby the theme of civilising mission, now in the name of universalism and humanrights.25 For, in common parlance today, globalisation seems to mean economicand political domination of a Western-focused, even eurocentric process ofdevelopment in linear fashion, moving more or less inevitably towards globaluniformity.26

In debates by social scientists, legal aspects of globalisation are rarely explic-itly discussed, but often form an important subtext. Doshi (2003: 374) finds

23 For example, sociologists are now agonising over the significance of the concept of societywhich appears to have lost its meaning (Doshi, 2003, citing Bauman, 1992 and others).

24 Robertson (2003: 11) sees decolonisation as a child of globalization and its struggles, butalso notes the risks of prospering neocolonialism and its potential to destabilise what heportrays as the third wave of globalisation.

25 I have discussed elsewhere (Menski, 2003: 1118) that, while post-colonial theory seeksto reveal the inherent contradictions of the civilizing mission of European colonialism,such falsities have infected even the best of current critical social science scholarship.

26 Twining (2000: 192) finds it disturbing that these alleged universal or general standards arenot often subjected to sustained critical analysis. White (2001: 46) criticises Max Webersrelatively anaemic conception of rationality as excessively myopic.

12 comparative framework

that [e]ach scholar has his own logic about the consequences of globalizationand reports much theoretical speculation about how concepts like modernity,postmodernity and globalisation are related. We can therefore not expect a neatpattern of analysis, in which everything becomes clear at the end of the day. Onthe contrary, as globalisation becomes stronger and more mature, the inher-ent contradiction between unifying ambitions and plurifying realities becomesmore apparent and assumes critical relevance to studying comparative law ina global context. After much debate, the emerging assessment appears to bethat globalisation is much more than one single phenomenon and is not actu-ally moving the world in the direction of uniformity. On balance, the constantinteraction between the global and the local creates more plurality rather thangreater uniformity. The hybridisation inherent in globalisation processes leadsto what Robertson (2003) calls global localization, which he also referred to asglocalization (Robertson, 1995). Not surprisingly, there is now much contro-versy over conflicting visions of globality. Doshi (2003: 3678) captures bothsides well:

The developing countries in Asia and Africa are much scared about theexpansion of globalization. They consider it to be a new kind of imperialism,which exercises its hegemony in the fields of economy and culture. The USis the leading champion, which subordinates the nation-state cultures. Thenation-state and grass roots culture are always in fear of its extinction. Theother side of such a notion is that the proliferation of globalization wouldin the long run establish a uniform social order. The end of this process ishomogenization.

Many writers now point to the large list of negative impacts of globalisation.27

As the world has shrunk in terms of travel time and ease of communication,global interlinkage has brought new opportunities as well as new worries. TheChernobyl nuclear accident demonstrated that disasters in one part of the globecan have tremendous implications on people living far away. Taking the exampleof dumping toxic and dangerous wastes in the territories of powerless devel-oping countries, an important study on the future of human rights warns ofgenocidal corporate and international financial institutional regimes of gover-nance which are, to coin a neologism . . . righticidal practices of managementof governance (Baxi, 2002: 143). Clearly, there are many lurking dangers in theongoing processes of globalisation. In his exploration of globalisation, Robert-son (2003: 3) portrays it as everyones favourite catchphrase today, but hisassessment of globalisation is not all positive:

Indeed, it has become the bete noir of analysts angered at the contemporarypower and influence of transnational entities, monsters that they believe are

27 Flood (2002: 311) notes that [a]lthough good things can flow from globalisation, thepotential for suffering is omnipresent and rising.

introduction 13

rapidly homogenizing the world, destroying its diversity, and marginalizingits peoples hard-won democratic rights.

This leads into an important current debate, in which the image of globalisingforces as monsters makes another appearance. One of the leading experts onhuman rights and traditional governance in Southern Africa (Hinz, 2003a: 114)reports:

In training programmes of the Human Rights and Documentation Centreat the University of Namibia, we have always paid special attention to theperception of human rights by those who attended our programmes. Someof these perceptions we had to listen to were: human rights are westernconcepts; human rights interfere with the values of our culture; humanrights are there to protect criminals; human rights prevent us from doingthe job. Human rights are, so it has been said by a distinguished and well-respected traditional leader, monsters.

This kind of debate reflects lively ongoing worldwide discourses about visions ofan ideal society.28 Not everywhere are global and/or modern Western patternsof thought dominant; indeed, traditional and local concerns often predominateand assert themselves.29 While liberalism as well as Marxism have their roots inenlightened universalism, which lawyers should recognise as a form of idealisednatural law, the new universalism brought about by globalisation is supposed tobe inspired and nourished by a cosmopolitan world society, a global society inwhich transnational social bonds and universally held notions of peace, justice,equality and freedom would define the conditions of human existence (Doshi,2003: 372). This vision is one in which all of mankind pulls together in buildinga unified structure, a global village in which everyone can live together happilyon the basis of agreed rules. But it should be immediately obvious that such ascenario is simply not realistic. What about normative pluralism and the agencyof the individual? What about subaltern perspectives (Guha, 1982)? Do we needto be reminded of multiple legal pluralities by traditional leaders from Namibiato realise that a universally applicable value system for the whole world is littlemore than a nice illusion,30 theoretically attractive, but practically impossible?

The concept of enlightened universalism, now prominently reflected inlively human rights discourses, has been inspired by a much-noted but imper-fectly analysed resurgence of natural law thinking in the twentieth century.31

28 For obvious reasons, academic debates are highly activated in post-Apartheid SouthernAfrica (see Freeman, 2001: 98; Bekker et al., 2002; Bennett, 2004; Hinz, 2003a).

29 Twining (2000: 249) notes that CNN and the Internet may circle the world, but they havenot penetrated very far in Uganda or India.

30 Schott (1995: 38) portrays absolute legal equality as a utopian dream of philosophers (einutopisches Traumziel der Philosophen) which is an exception in normal human reality.

31 In his debate about the co-existence of legal traditions, Glenn (2000: 332; 2004: 358)argues that legal diversity is natural and looks like it will be with us for a long time. It issustainable, and perhaps there should even be efforts to sustain it.

14 comparative framework

Given that globalisation appears to have created hybrid results rather than uni-formity, leading in political science terms to a bifurcated, multi-centric worldas a hyper-pluralist transnational society (Rosenau and Tromp, 1989), there isan argument for listening to many voices in the ongoing debates. Enlighteneduniversalism therefore must mean and involve intrinsic respect for pluralityand diversity.32 Hinz (2003a: 117) argues:

The challenges of the international human rights discourse will only resultin responses from which individuals and societies will benefit when localvoices are allowed to speak up, when local perceptions are taken seriously,and when local concerns are respected. We must understand that peoplehave a right to call human rights monsters when they are told that there wereno human rights in their traditional societies. People have a right to resisthuman rights concepts imported by religious and secular missionaries whopretend knowledge of everything without having set foot into the areas inwhich they want to do missionary work.

Hinz (2003a: 117) highlights that there is a need for what he calls the soft humanrights approach, since traditional societies have the skills to react constructivelyto new challenges:

One of the ways to which I would give priority, is to empower traditionalcommunities and groups of stakeholders like traditional leaders consciouslyto judge the suitability of their own way of doing things in the context of thepresent enhancement of human rights. This may lead to reconfirming whatthey have been doing all the time. It may also lead to changes in what theyhave practised thus far. It may eventually lead to the permanent acceptanceof new ways of doing things. One can only hope that it will also lead to theacceptance of a modicum of modesty when people proclaim that they needmore time for the adjustments expected of them.

This seems to indicate that, while emphasising ideal notions like the universal-ity of humankind and equality certainly does no harm and has an importantsymbolic value, in social reality on the ground, diversity and plurality continueto be so important to peoples well-being that an ultimate ideal of global uni-versality and absolute equality in all respects seems misguided as a blueprint forglobal development. It appears that post-Apartheid South Africa has explicitlyrecognised this (Bekker et al., 2002) in order to be able to survive as a rainbownation. However, this does not mean that respect for pluralism is necessarilyand automatically good in itself and can simply be romanticised as an alterna-tive ideal to uniformity.33 Santos (1995: 11415) argues that there is nothinginherently good, progressive, or emancipatory about legal pluralism. Indeed

32 In this context Twining (2000: 243) claims for himself a perspective of innocent realism,leading to agnostic abstinence, recognising the risks of sitting on the fence.

33 This claim is often made in various contexts. See Freeman (2001: 903ff.) on the romanticreaction to natural law in Germany.

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there are instances of legal pluralism that are quite reactionary. However, doesinsistence on uniformity magically guarantee the dismissal of reactionary out-comes, or absence or reduction of conflict? Evidently, such debates are closelylinked to discourses about equality versus equity and to old debates amonglawyers about whether following precedent or working from case to case ispreferable.

It appears that plurality-conscious globality-focused legal methodologieswill need to emphasise a radical view of equity as a foundation for ultimateequality, and must prefer finding justice from case to case over rigid adher-ence to precedent. Ancient Hindu texts, among others, strongly advised thatthis was preferable to avoid injustice.34 A legal methodology that acknowl-edges situation-specificity at all times (and thus deep or strong legal pluralism)would seem to be an essential tool in this endeavour. Everywhere on the globe,globalisation remains confronted with massive plurality and diversity and theirconsequences. In a detailed discussion of the three major challenges to glob-alisation, Robertson (2003: 13) finds that, in the short term, it is the refusalof many societies to accommodate diversity, one of the most important conse-quences of globalization, that may immediately prove most destabilizing. Thus,despite ideologically grounded widespread fears and allegations that respect forlocal diversity and cultural specificity will not lead to a good life for all worldcitizens, it seems that in social reality plurality and diversity are going to prevail,because that is what people themselves want. This, too, suggests that respectfor plurality and equity should be the ultimate aim.35 Robertson (2003: 13)strongly argues for the enhancement of a global consciousness of plurality,relentless individual and collective empowerment and an inclusive rather thanexclusive reading of human history:

The creation of effective strategies to handle the reality of human diversity isone of humanitys most pressing challenges, as recent wars, ethnic cleans-ings, genocides, and the restless tides of refugees and displaced personsdemonstrate.

In view of such debates, it appears that lawyers will increasingly need to rely on,or must develop for themselves, social science expertise. This means that partic-ular legal methodologies need to be developed, or existing ones reshaped,36 toanalyse law in a global context. In view of southern African socio-legal realities,

34 See Brihaspatismriti 2.12, quoted by the Kerala High Court in Kunhikannan v. State ofKerala, 1968 KLT 19, at 23 (chapter 4, section 4.3 below).

35 Edge (2000: 6) notes that [t]he much vaunted globalisation process does not have tomean the inevitable march of so-called progress to a sanitised future of dull uniformity.Glenn (2000: 3278; 2004: 3535) warns that simple tolerance, as a Western concept, isnot sufficient to cope with pluralism.

36 Cotterrell (2003; 2004) argues for an empirical legal theory that takes explicit account ofindividual human autonomy and of community.

16 comparative framework

Hinz (2003a: 117) emphasises that [t]he challenges of the international dis-course can best be met by proactive responses to problems emerging from theinterface between local perceptions and the international discourse. This is thenexactly where jurisprudence and anthropology meet.

The present study therefore emphasises the need for strengthening socio-legal approaches, which seem to have led a marginal existence within jurispru-dence.37 But, in itself, this is not enough. A socio-legal focus with pluralist ori-entation must challenge the prevailing black box approaches, as well as blackletter law and the predominance of authoritative law-making by rulers andnation states.38 Taking a self-consciously cautious and conservative approach,Twining (2000: 10) leaves no doubt that if legal theory is to engage seriouslywith globalisation and its consequences a critical re-examination of its agenda,its heritage of ideas, and its conceptual tools is called for. However, does advo-cating an integrated socio-legal perspective go far enough?

One of the key questions for lawyers today becomes to what extent globalisa-tion will and can mean harmonisation or even uniformisation of laws all overthe world. The present study cannot start from an assumption that at somepoint in the future there will no longer be any Hindu law, Muslim law, Chineselaw or African laws in the world. These internally complex legal systems havealways changed and will inevitably experience further change, but it is unreal-istic to assume that they will ever give way to some kind of cosmopolitan globallaw. Abandoning the Western hubris that underpins much of comparative lawand most of the current human rights discourse, the present study challengesthe claimed superiority of Western models of law as dangerous. Similarly, Glenn(2000: 330; 2004: 356) argues that uniformising visions constitute a form offundamentalism:

They elevate one truth, or one tradition, to exclusive status, and seek toimpose it. Fundamentalists may thus act in an imperial or aggressive orviolent manner. In so doing, they do not reflect the entirety of their owntradition. Nor do they represent a truth which has the potential of becom-ing a major tradition in the world. It is, as interpreted, insufficiently com-plex to attract support across the wide range of human opinion. Complextraditions are therefore by their nature, and in their leading versions, non-universal and non-universalizing. They offer many grounds of accommo-dation with other complex traditions.

While this specific debate focuses on the co-existence of major legal traditionsin the world, Europeans may need reminding that the demographic majorityin todays world is definitely not in the North and that law everywhere remainsa culture-specific and therefore social phenomenon. Asking whether there is a

37 Twining (2000: 26) reports that already during the nineteenth century, the historical schoolwas perceived as a threat and a rival by positivists.

38 Indeed, pluralist approaches raise important questions about power (Griffiths, 2002: 289).

introduction 17

core in any of the major legal traditions of the world that could supplant all thelaw of the rest of them, Glenn (2000: 331; 2004: 357) responds: The answerwould appear to be that there is no such universalizable core. This is good newsfor the sustainability of the major, complex, legal traditions of the world.

Globality-conscious legal scholarship therefore needs to become less idealis-tically committed to certain ideologies, more practicality-conscious and sociallyand culturally aware of existing pluralities, including more explicit recognitionof various Southern perspectives. At the same time, such globality-consciousscholarship needs to allow itself to dream afresh, in remodelled natural lawfashion. This needs to be focused not so much (as was hitherto the case) on thesupremacy of nature or of law, and therefore those (gods or men, normally)who are deemed to have the power to make rules for others. Rather, it shouldfocus on the fact that a good and sustainable global legal order, to cite Robert-son (2003: 4) and his vision of the third wave of globalisation, suggests theemergence of something greater than the accident of interconnections.39 Thatkind of globalisation cannot hope to live without deep respect for plurality anddiversity in the world, based on flourishing and dynamic equity rather thanflattening equality. It also has to take account of something as vague as publicinterest or the common good.40

Hence there is a complex prima facie case for studying the legal systems ofAsia and Africa in their own right and as integral elements of the global legalorder in a spirit of respect for plurality. To what extent the existing methods ofdealing with jurisprudence and comparative law are sufficient for this enormouschallenge is not the key issue here, since we know that present approaches are notadequate. The main challenge and ambition of this book is therefore to movethe existing debates beyond false axioms and simplistic models to a deeper levelof legal analysis and understanding.

Following this introduction, which lays out the wider implications of global-isation for the study of law anywhere in the world, the first major chapter of thisbook reflects in more detail the various methodological difficulties of plurality-conscious global jurisprudence and offers a critical analysis of the ongoingproblems faced by comparative law and legal theory as academic disciplines.Discussing and delivering globalised legal education is an ambitious enterprise,but certainly not an impossible goal. The chapter, in several sub-sections, argues

39 This concept, known as super-additivity in mathematical English and as Ubersummein German (Fikentscher, 1995), overcomes the constructed boundaries of private andpublic, which Fikentscher (1993) has traced back to ancient Greek distinctions of oikosand polis. See also Mahajan and Reifeld (2003). On the idea of India as a nation greaterthan the sum of its parts see Tharoor (2000: 5).

40 Much writing exists on this outside anglophone scholarship, particularly the 1970s worksof Ernst Fraenkel (Schutt-Wetschky, 1997). Glenn (2000: 320) lists interest analysis (Inter-essenjurisprudenz) as one of the young traditions or goslings of the legal world and refersto Schoch (1948).

18 comparative framework

that in a changing world scenario, globalising eurocentric visions appear likeanother form of postcolonial colonisation, which is now being undermined bythe private colonisation of many Northern states through migration from theSouth, which results in unofficial ethnic implantation of yet more legal hybrids.This chapter also discusses different models for studying law in a global context,based on interdisciplinary consideration of related subjects which should forman integral part of legal education and the study and practice of law today.

Chapter 2 focuses on legal pluralism, arguing that it constitutes much morethan plurality of legal rules and should be treated as lying at the very root ofall legal studies today, perhaps even as the fourth major methodology of legaltheory. Plurality-focused legal analysis requires reconsideration of the conceptof law itself and the various ways in which this phenomenon has been studiedand used. It is indeed painful, and yet beneficial, for incoming law students tobe confronted with the basic fact that there is no universally agreed definition oflaw. If all existing legal reasoning is ultimately circular (Cotterrell, 2003: 244),students are forced to realise, from the start, that the subject of their study ismuch more complex than they imagined when they first contemplated a legalcareer. It excites intellectually alive students to be shown that divergent viewsabout the nature of law are not a result of simple NorthSouth discrepanciesor peculiarities of one jurisdiction, but that within any given country there aremany different approaches to law which dynamically interact at all times. Fromthe very start of recorded scholarship, the best thinkers of the world did notreach the same conclusions about what law is and means.41 Learning about plu-rality within various legal theories around the globe empowers lawyers to thinkfor themselves, rather than to submit unthinkingly to rote learning processesor certain attractive ideologies. If law students can, from the start, develop sen-sitivity for how different concepts of law have been historically growing withina specific socio-cultural environment, they have also been taught to function ashumans, not just to think as lawyers. Studying pluralism of theory and thoughtin law is not just a matter of recognising some exceptions for strange othersystems. It is necessarily an integral part of legal methodology, informing allour systems of thought and behaviour, resulting in an integrated legal educa-tion which frees itself from the shackles of black box theories and the virtualcoma induced by dominant paradigms of legal positivism.

Chapter 3 covers what would appear to be familiar ground to traditionallawyers, in that it goes in roughly chronological order through the basic ideas,concepts and approaches of the various major schools of legal thought. Thisnecessarily brief and incomplete survey implements a conscious decision forthis revised edition to discuss the various theories of law only after the readerhas been sensitised to the demands for a plurality-conscious globally valid

41 Morrison (1997: 6 n. 9) highlights that even Austin was conscious of legal pluralism andcriticises later commentators as presenting his approach as overly simplistic.

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methodology of analysing law in chapter 2. It should become obvious, througha fresh reading of established legal theories, that the major debates about thenature of law have remained fragmented and partial, are hardly global andappear now sometimes quite nave.42 They represent eurocentric approachesand are frequently just petty debates over little details, full of unnecessarypolemics, extended squabbles among experts on particular aspects of Europeanlegal systems. Such fragmented debates are deeply unsatisfactory because inan era of globalisation, we are under increasing pressure to focus on the wholeuniverse of legal phenomena (Twining, 2000: 175).

Finally, chapter 3 ventures beyond known territory by suggesting that thereis an urgent need to rethink particularly the scope for combination of modernnatural law theories with historical and socio-legal approaches. By abandoningthe traditional false dichotomy of natural law and legal positivism, significantprogress can be made in theorising strong legal pluralism, combining the theo-retical approaches of natural law, positivism and historical/sociological schooltraditions in a triangular or concentric model (chapter 3, section 3.8). Sincelaw is itself an internally plural phenomenon, a globally focused legal the-ory cannot avoid taking a realistic plurality-conscious approach that respectsand highlights different perspectives, never totally ignoring consideration ofthe other. The central field within the triangular model of global legal theoryrepresents the arena of legal pluralism. Within it, the intrinsic pressure and sys-temic need to develop plurality-conscious justice-sensitive outcomes motivateconstant negotiation between potentially conflicting legal inputs.

Four further chapters in Part II of this book apply this plurality-conscioustheoretical model, focusing on major Asian and African legal systems andrelated jurisdictions. Chapter 4 concentrates on Hindu law as a family of lawsthat falls, like the term Hindu itself, under a conceptual label which hidesenormous divergence and internal plurality, and yet seems to make globalclaims. Proceeding from internal historical perspectives, an understanding ofthe conceptual foundations of Hindu law produces the realisation that statelaw is virtually absent within the traditional system, while the key to classicalHindu law seems to lie in appreciating the central role of models of cosmicorder, macrocosmic as well as microcosmic, providing an intellectual contin-uum throughout the history of Hindu societies and legal systems. This set ofdynamic natural law presuppositions has, of necessity, important implicationsfor the study of Hindu law as a historical construct, since such indigenousperceptions clashed with the assumptions of outsiders about what Hindu lawis and how it manifests itself. The story of how colonial rule influenced theconcepts and processes of Hindu law and turned it later into the bogus Anglo-Hindu case law (Derrett, 1977: vii) with bizarre effects (Derrett, 1978: 78), is

42 This seems to go particularly for debates about families of law and the mapping of laws,on which see Twining (2000: 13673).

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followed by a detailed analysis of postcolonial modern Hindu law. This illus-trates how, more recently, postmodern Hindu law began to pierce throughearlier colonial impositions by the 1970s, rediscovering its roots, a complexprocess opposing simplistic uniformising globalisation visions, which is nowbecoming much clearer.

Today, it has become possible to study modern Hindu law as a legal sys-tem on its own terms, within a secular official framework, but with richlymanifested Hindu conceptual characteristics (Menski, 2003), which are notnecessarily religious. Modern Indias desire to portray itself as a secular democ-racy, developing along internationally respected lines, clashes head-on with thecomplementary desire to construct a legal system that can provide sustain-able justice for Indias many millions of desperately poor people. Recent legaldevelopments in India show that Hindu law is reasserting itself as a legal sys-tem in its own right, borrowing certain so-called Western concepts, but notdependent on them (Menski, 2001; 2003). The diachronic study of Hindu lawteaches about the internal diversities of law itself, its contested paradigms and itsnever-ending multifaceted manifestations within the overarching frameworkof a plurality-conscious, culture-specific global vision.

Chapter 5 focuses on Muslim law and, while emphasising the unique featuresof that legal system, problematises the realisation that Muslim law, too, is inreality a family of legal systems with immense internal diversities, rather thanone uniform law. All that is common to all branches of this great tree are thebasic conceptual roots, evidently of a religious nature, presenting an alternativevision of a natural law system, since Muslim law is not primarily made by thestate.

The understanding of traditional concepts of Muslim laws, too, is premisedon the realisation that there is a superhuman agency that is believed to havelaid down parameters for all forms of life which continue to apply, whetherhumans accept it or not. This primarily religious tradition with global claims,also locally coloured and historically rooted, may manifest itself in firm religiousbelief and resulting orthopraxis, itself another heavily contested field. In suchbasic respects, the only difference between Hindu law and Muslim law is thatMuslims clearly acknowledge that this universal Order is under the exclusivejurisdiction of one divine authority, Allah.43

Having focused primary attention on one divine authority that is believedto have created the global Order (huqm), Muslim law had to develop as asystem of rules that would at all times relate back to this central authority. Afterthe death of the Prophet in 632 AD, the urgent need to ensure continuity of

43 Hindus, on the other hand, unable to agree (and never imposing a consensus) on thenature of this superhuman force, settled on explicit recognition of pluralistic tolerance,allowing individuals to believe in whatever superior force they chose, which could, in somehighly syncretic cases, include Allah, Christ and others.

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thought and of authority led ultimately to various systems of scholarly juristicexpertise, which have over time created an impressive body of jurisprudence(fiqh), marked by enormous plurality and continuously developed also today,in interaction with many other sources, throughout the Muslim world. Thecomparative law student needs to understand, as fast as possible, that the Quranis not in itself, word by word, Gods law (in the sense of positivist law). It isnot, in that comparative legal sense, divine legislation,44 but something muchhigher and larger: in fact it constitutes a holistic conceptual edifice of naturallaw. That being so, the Quran contains the roots of all good for the world as awhole and all law for all Muslims. The perennial challenge, the continuous taskof man, and of every individual believer, is to discover what this law is, hencethe crucial importance of juristic effort (ijtihad) and of human reasoning (ray)within Muslim jurisprudence, second only to divine revelation, both inevitablyand inextricably linked in a plurality-conscious symbiosis.

The family of Muslim laws contains much evidence of experimenting withdifferent types of reform to modernise, to divest certain religious authorities oftheir superior standing and to allocate new powers to the states functionaries.Or the aim was to Islamise, to educate local populations into accepting rulescloser to the demands of the Quran than traditional local norms. Today, insome cases, the expectations of modern international law are resisted as foreigninterventions. Two intriguing case studies are Turkey and its path-breakingmodernist legal reforms (chapter 5, section 5.13) and Pakistan (chapter 5,section 5.14), choosing to follow a path of so-called Islamisation, with manifoldconsequences for law-making in a modern democracy. Analysing those two casestudies, and other developments within Muslim laws today, confirms that legalpluralism remains a reality also within the globalised framework of Muslimlaws. The purported conceptual uniformity of Islamic law and its pluralisticmanifestations are therefore not a contradiction. Such concepts co-exist, asthey have always done, and have made the study of Islamic laws challenging forMuslims, experts of Islamic law, as well as for comparative lawyers.

Chapter 6 focuses on African laws, more than any other family of laws atruly extended family, due to the absence of centralising political and religiousforces. This inherent plurality has made the study of African laws an immenselyfragmented experience. Because it is almost impossible to work on the basis ofAfrican universals, many scholars have been frustrated by the masses of smalldetail required to understand any one legal system, only to see that it has limitedapplication.

Moreover, the colonial agenda and events, and Christian as well as Mus-lim claims over African souls and people today, have driven the mostly oralindigenous African traditions further into the realm of the unknown. Only afew African thinkers and researchers have dared to stand up to the continued

44 Which, of course, many Muslims take it to be, as a matter of belief.

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claims of outside domination, asserting in turn that Africans have always hadtheir own legal traditions. These are African assertions of natural law, whichcontinue to be fiercely resisted. The powerful but of course nonsensical assump-tion that traditional African societies did not have law still lurks, as evidenceof local customary norms is often treated as a sign of backwardness and theprescribed path to a better future involves foreign-dictated outline plans ofdevelopment that do not, in most cases, take adequate account of local normsand needs. It is no surprise that some Africans are talking about monsters whenthey refer to globalising pressures. As in the analysis of Hindu law, it is possibletoday to show how awareness of environment and nature, of complex localrepresentations of global, macrocosmic and microcosmic order, have shapedAfrican legal traditions and continue to influence the way in which Africanlegal systems develop. There is much need for further research on all aspects ofAfrican laws, but there are signs of progress in this field, too (Okupa, 1998).

The study of African laws, fragmented as it is, has until recently at any ratein Britain mostly concentrated on the impact of colonial rule. The materialcollected here and the resulting discussions reflect that emphasis. As in post-modern, post-colonial Asia, African legal systems today, including the laws ofthe newly restructured Union of South Africa, develop within a complex frame-work of multiple reference and interactions, heavily contested when it comes toissues of dominance. Here, too, at the legal coalface, globalisation results in thecreation of new hybrid legal systems such as post-Apartheid South African law,which is clearly not turning out as a carbon copy of Western legal systems. Forsome time, modern African legal systems have been dismissed as an intractablemess, while we see today that the fault lies more with insufficiencies of researchand limitations of our own understanding. It remains enormously difficult toprovide the necessary internal African perspectives (Bennett, 2004: 1), giventhe multiple outside influences on African laws, but it is not possible to denythat African customary laws and indigenous visions of natural law continueto exist today and make their own contributions to todays globalised legalscenario.

Finally, chapter 7 concentrates on Chinese law, also a historically grown andimmensely complex amalgam of many different legal systems over time andspace with its own ideas about natural law. The formally unified and theoreti-cally focused nature of classical Chinese law created an impression of somewhatrigid uniformity. However, that patina of uniformity disappears as soon as thesurface of imperial legal rules is scratched and we discover that the formal rulesleft much of what we call law today to informal local bodies and to custom-ary laws. State law in classical China, therefore, provided only an extremelythin layer of state regulation and supervision, which neatly parallels the pictureemerging from classical Hindu law as well as traditional African and Mus-lim laws. In other words, the formal superiority but actual remoteness of therespective states legal system appears to be a remarkably common element of