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Introduction
Livia Holden
Published online: 08 May 2013.

To cite this article: Livia Holden (2013) Introduction, The Journal of Legal Pluralism and Unofficial
Law, 45:1, 1-4, DOI: 10.1080/07329113.2013.782228
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The Journal of Legal Pluralism and Unofficial Law, 2013

Vol. 45, No. 1, 14, http://dx.doi.org/10.1080/07329113.2013.782228

Introduction
Livia Holden

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Department of Anthropology, Lahore University of Management Sciences, LUMS, Lahore

Legal Pluralism and Governance in South Asia and in the Diasporas focuses on the networks that act as referents for the settlement of justice in South Asia and in the South
Asian diasporas. Specific attention was directed to the elaboration of arguments in the legal process and the choice of the fora for dispute resolution. We have addressed the local
and translocal dynamics that have affected the settlement of justice and their conceptualizations; the colonial and post-colonial instances that have informed the conceptualization
of the sources of law and the implications of their recognition by the state; and the modalities of formalization and perpetuation of legal practices. Most of our contributions look
at the language of the law by exploring the socio-legal formulations and scrutinizing arguments within the patterns of litigation. But we also look at the ways South Asian laws
have been theorized both in South Asia and in the Euro-American socio-legal contexts.
We have taken up the challenge of including papers respectively engaging in legal, socioanthropological, and feminist analysis and sometimes from a multidisciplinary perspective in order to attempt a dialogue among different standpoints.
This special issue went through several hurdles and took almost two years to be finalized. Academic politics and circumstances of life hampered our project to meet and present our papers in Pondicherry. We succeeded to convene a panel on non-state
jurisdictions at the Law and Society Conference 2012 in Honolulu. However, the initial
funds allocated to this project were withdrawn and only a few papers could be presented
at that occasion. In the meantime the authors had sent me their papers, and I realized that
they were all highlighting aspects of legal pluralism in spite of the fact that we were talking different languages and some of us very loudly. As editor I found that my task was not
to reach a unique and common voice; it was instead to voice those different positions and
to point at their socio-legal implications. Interesting dynamics ensued that may deserve
separate account but suffice it to say here that some contributors found unsettling the multidisciplinarity of our ensemble and left to pursue the same foci elsewhere. More authors
joined. Carrying out long term research in Pakistan I was also observing how development
organizations that have for a long time pursued the implementation of the global rule of
law intended exclusively as state law, seemed now keen to increasingly draw attention to
local and non-state practices of dispute resolution. Significant Euro-American investments were put into the implementation of human rights and democracy not anymore
through state-law only but non-state law as well. New arguments mobilizing the needs for
context-savvy social engineering were developed as a result (Tamanaha 2012). I found all
these events confirming the fact that the interaction between legal pluralism and governance resonates as a priority in the socio-legal domain. It also appeared evident that there
was a pressing need for a re-contextualization of legal pluralism, in particular regarding
the modalities of its performance. Our papers show that depending on how law and law
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L. Holden

practices are seen and theorized by the state and the social actors bear implications
in terms of governance. In spite of the fact that the authors of this special issue have
a wide range of positions regarding what is and should be law and how it should be
theorized (legal pluralism and legal monism being at the two ends of the spectrum), our
contributions show that legal pluralism as a de facto phenomenon cannot be ignored.
It seems now a long time since the legal pluralism conceived by Pospisil (1979) in his
study of Kapaku Papuans and the study of the relationship between law and social institutions in Western societies by Foucault (1979) and Fitzpatrick (1983).1 Both the legal pluralism characterized in opposition to legal centralism (Griffiths 1997) and the legal
pluralism as multiplicity rather than a unique sovereign system (Baxi 1986; Chiba 1986)
have been challenged on several accounts. Criticism revolves around the fear that the
equal acknowledgment of the diverse practices of law would irremediably inflate the notion of state law (Tamanaha 1993) as including forms of resistance to it (Fuller 1994) and
furthermore blurring the supposedly necessary boundaries between state and non-state
law (Tamanaha 2007). While Woodman (1998) and de Sousa Santos (2002) have
responded by questioning the ontological nature of the opposition between state and nonstate law others have concentrated on models of plurality of law as well as on the examples of integration of counter-hegemonic instances within the state (Benda-Beckman and
Benda-Beckman 2006). The need for an opposition between state and non-state law, however, was hardly tackled. By pointing out the ideological framework within which law is
designated as state or non-state law Legal Pluralism and Governance in South Asia and
in the Diasporas overcomes the impasse and shows that legal pluralism does not concern
the law as it should be but instead the practices of law as observable phenomena.
Specific questions have been developed here as follows: Where and how do social
actors initiate their claims? Do the theorizations of law affect access in terms of gender,
religion, power, and ethnicity? What makes social actors to decide in their forum shopping? Our papers show that contexts of non-state law co-exist, intersect, and overlap with
those of state law. They are sometimes but not always antithetic and conflicting in spite
of the fact that the term non-state law is now acquiring a negative connotation because it
is increasingly perceived as law against the state, and thereby threatening.
The first half of this special issue poses the terms of the conflict between legal pluralism and legal monism. It opens with the papers that are skeptical regarding legal pluralism and plurality of laws and provides historical and pragmatic examples of the
limitations of legal pluralism. Parashar argues that personal laws exist only when allowed
or at least tolerated by the state and alert us to the dangerous implications for gender
rights when misconstructing religious laws in terms of personal laws. Madsen discloses
how South Asian personal laws are increasingly relevant at the level of global governance
for cases involving not only South Asians but also Euro-American litigants. The following two papers focus on European South Asian diasporas and both highlight the urgency
of finding ways to substantially accommodate South Asian laws in the European legal setting. Menski indicates the dangers of alienating entire diasporic communities when
blindly insisting on European state-centered legal theories and poignantly argues for the
need of a responsible acknowledgment of the role of South Asian laws. Shah proposes
new ways of looking at law and legal theories arguing that religion should be taken into
account as a factor informing the law. He also shows that underlying Christian frameworks have distorted personal law, Muslim law, and shariah by superimposing the opposition between state and non-state law.
The second half of this special issue outlines four South Asian settings in which legal
pluralism and plurality of laws within and beyond the state have an impact on the

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Legal Pluralism and Unofficial Law

interactions between the state and social actors. Vatuk shows that the Indian state has integrated modalities that have been so far rather viewed as belonging to non-state law and
this has generated further variety: new state jurisdictions that inspired from non-state law
propose to cater better for women. Holden and Chaudhary describe how from the perspective of the users non-state and state jurisdictions are not necessarily antithetic and can be
seen as a continuum since they both impact on governance in Pakistan. The same paper
also shows that custom is not per se equivalent to personal law and interreligious fields
(as practices relating to more than one religion) may deserve further exploration. Shariff
explains that the strategies of dispute resolution among the Santals in Bengal are constantly readjusted following the ways social groups position themselves vis-a-vis the hegemonic instances of the state. Sbriccoli describes how law in Rajasthan, if apprehended
as discursive practice, is neither limited to the state nor constituted by a linear plurality of
jurisdictions intended as mere juxtaposition of fora.
As an editor who is skeptical of monolithic views I accepted one paper openly criticizing another contributor on the condition that criticism would not be an attack and communication would be attempted. The readers will realize that an agreement was not reached
and perhaps not even a dialogue. This is not the place to go in any depth in the further discussions that resulted when the time came to bind the papers together but I am grateful for
the patience of the involved authors and of the chief editor, Professor Melanie Wieber. By
taking up the challenge to combine the variety of our views, my suggestion is that instead
of seeking unisons, it is far more interesting to make the efforts to understand how different disciplines, backgrounds, and experiences can contribute to understanding and theorizing the practices of law. By not shying away from academic divergences and related
politics as well as by integrating multidisciplinary analysis I think the authors of Legal
Pluralism and Governance in South Asia and in the Diasporas have succeeded to flag up
the terms for legal pluralism to account for the contextually finite circumstances of law
that both within and beyond the state are likely to impact governance in South Asia and
in the diasporas.
Note
1. For a non-exhaustive list of authors elaborating on similar vein see Allott and Woodman (1985),
Collier and Starr (1989), Comaroff and Roberts (1981), Fitzpatrick (1983, 1984, 1992), Galanter (1981), Gillissen (1960), A. Griffiths (1997), J. Griffiths (1986), Harrington and Yngvesson (1990), Holden (2004, 2008), Lazarus-Black and Hirsch (1994), Menski (2006), Merry
(1988), Morse and Woodman (1988), Roberts (1979), Sarat and Silbey (1987), Vanderlinden
(1998) and Woodman (2002).

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