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Marieke Hopman

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12 juli 2016

Studeer mee: Pospisil’s legal systems & legal levels

12 juli 2016 | By | No Comments

Text: Pospisil, L. (1967) ‘Legal Levels and Multiplicity of Legal Systems in Human Societies’, in: The Journal of Conflict Resolution 11(1), pp. 2-26.

Introduction

 

In everyday legal work we generally take the state law and international law as the ultimate sources of law that guide our work on a daily basis. This position takes the conventional concept of “law” to mean “state law” or “international law”. However, this idea has been criticized by many great thinkers such as for example Eugen Ehrlich, Max Weber, Boaventura de Sousa Santos and Leopold Pospisil. They argue for an understanding of law that recognizes laws other than those rules issued by the state. Some even argue that the tendency to identify law with state law adheres to ‘the ideology of state centralism’,[1] and call for an ‘uncoupling of law from the state’.[2]

These researchers adhere to what has been called “legal pluralism”; the idea that it is possible to say that multiple legal orders coexist in the same social field, [3] that the state is not the only legal order, that there are other laws except state law.

If they are right, lawyers might have to look further than state or international law to understand the legal situation many people (and, notably, children) find themselves in. Ehrlich in this respect criticized legal practicioners, saying that ‘the jurist does not mean by law that which lives and is operative in human society as law, but, apart from a few branches of public law, exclusively that which is of importance as law in the judicial administration of justice’.[4] Instead, he proposed that the jurist has ‘to look not only at the law, but at the whole of legal life, whether it accords with the law, whether it runs contrary to the law or whether it fills the gaps of the law’.[5] In this way, legislators can legislate more effectively, because they will be better aware of the consequences of rules they install,[6] scientific research on law will become much more relevant[7] and jurists can use real life in the courtroom.[8]

Pospisil took Ehrlich’s idea and applied it to his own field research, firstly demonstrating how law among Kapauku Papuans, Nunamiut Eskimo and Tirolean peasants,

‘the decisions of the leaders of the various subgroups bore all the necessary criteria of law (in the same way that modern state law does): the decisions were made by leaders who were regarded as jural authorities by their followers […] these decisions were meant to be applied to all “identical” (similar) cases decided in the future […] they were provided with physical or psychological sanctions […] and they settled disputes between parties represented by living people’.[9]

He therefore claims categorially that ‘every functioning subgroup of a society has its own legal system which is necessarily different in some respects from those of the other subgroups’.[10] An individual is simultaneously a member of several subgroups, such as the household, the lineage, etc, and consequently the same individual may be subject to different and sometimes contradictory laws of different legal systems.[11]

However, this is not exclusively the case when it comes to more primitive or exceptional societies. Pospisil sees the same kind of legal systems operating in Western society; in the USA for example, ‘there exists, besides the federal or national legal system that is applied to the whole society (nation), the legal systems of its component states’.[12] But he goes even further and controversially argues that ‘even a small grouping such as the American family has a legal system administered by the husband, or wife, or both, as the case may be. Even there, in individual cases, the decisions and rules enforced by the family authorities may be contrary to the law of the state and might be deemed illegal’.[13] Other examples of legal subsystems are the criminal gang, the province, the village, the clan, gilds.[14]

 

[1] John Griffiths, ‘What is legal pluralism?’ (1986) 18 The journal of legal pluralism and unofficial law 1-55 3.
[2] Boaventura de Sousa Santos, Toward a New Legal Common Sense: law, globalization, and emancipation (second edn, Cambridge University Press 2002) 68, 85.
[3] Sally Engle Merry, ‘Legal pluralism’ (1988) 22 Law and society review 869-96.
[4] Eugen Ehrlich, Fundamental Principles of the Sociology of Law (Harvard Studies in Jurisprudence, Arno Press 1975): 9-10.
[5] Eugen Ehrlich, Manfred Rehbinder, Gesetz und Lebendes Recht: vermischte kleinere Schriften (Duncker & Humblot (1986): 232, 234.
[6] Ibid: 238-39.
[7] Ehrlich, 1975: 493, 1986: 237.
[8] Ehrlich, 1986: 237.
[9] Pospisil L, ‘Legal levels and multiplicity of legal systems in human societies’ (1967) 11 Journal of Conflict Resolution:  9.
[10] Ibid: 9.
[11] Ibid: 9. The term “legal system” is used interchangeably with “legal level”.
[12] Ibid: 13.
[13] Ibid: 13-15.
[14] Ibid: 13.

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