Legal pluralism : toward a multicultural conception of law : a thesis presented in partial fulfilment of the requirements for the degree of Doctor of Philosophy in Sociology at Massey University

Abstract

The increasingly cosmopolitan nature of the nation-state, plus an increasing scepticism toward the modernism that has informed the scientific-legal nexus of late-capitalist society, creates the conditions within which a "multicultural" conception of law might emerge. This thesis evaluates the extent to which the field of legal pluralism can contribute to the development of such a conception. To facilitate this, I distinguish between three epistemological perspectives through which legal pluralists approach the study of law: post-realism, post-modernism, and post-pragmatism. In order to identify the conceptual resources that they might contribute I interrogate each with three questions: what definition of law does each imply?; what conceptions of alternative legal-subjectivity does each contain?; and what prospects does each envisage for an alternative conception of law? Two fertile ideas emerge from legal pluralism as a consequence: that law exists within the field of socio-cultural diversity rather than over it, and that law is ontologically distinct from justice. An image of multicultural law emerges from these dimensions. This substitutes law's current emphases on the codification of normality and the justification of power with an exploration of how alternative conceptions of sociality, democracy, and law might be empowered to emerge. I argue that this conception does not fully escape the positivist paradigm against which it is set. Specifically, it tendentially creates pluralism into a totalising discourse. As a consequence, it is at risk of becoming another instance of an emancipatory project that mutates into a form of regulation. A naturalised account of regulation is built into my argument to alter that positivism in a way that allows the emancipatory impulse of legal pluralism's project to survive.