In the contemporary world, we have grown used to several features of our legal systems. Many of these we take for granted; for example, the legal equality of citizens, the state’s monopoly on violence, and legal homogeneity—the existence of a single legal system within a territorial jurisdiction.
In my readings of ancient and medieval history, I was particularly struck by the prevalence—across most state-level societies throughout the world—of legal pluralism, which “refers to the idea that in any one geographical space defined by the conventional boundaries of a nation state, there is more than one law or legal system.” Legal uniformity, on the other hand, is a function of modern nation-states; from the Enlightenment onward, the idea that a state ought to enforce legal uniformity within its boundaries gained steam, and is now the default understanding in most jurisdictions. However, almost all societies prior to the last two centuries had elements of legal pluralism.
The most common reasons for legal pluralism in premodern states was the presence of multiple classes, castes, or ethnic communities within one state, as well as the privileges often accorded to institutions such as guilds and religious organizations. The Roman jurist Gaius noted that “all peoples who are governed by statutes and customs observe partly their own peculiar law and partly the common law of all human beings.” The Roman Emperor Trajan (ruled 98-117 BCE) wrote “I think…that the law of each city should be followed, which practice is always the most safe.” This was observed in practice: for example, in an inscription dedicated to the Emperor Claudius (ruled 41-54 BCE), the Lycians—a people from Asia Minor—thank the emperor for allowing them to use their “ancestral laws.” In a state where there were multiple overlapping legal jurisdictions, a Lycian, living in Roman Egypt, could make use of Lycian law within their local community, Egyptian law, or imperial Roman law. Often, an individual would choose which jurisdiction they wanted to be tried in based on where the most favorable outcome was most likely, as Paul of Tarsus did in the New Testament (Acts 25:10-11).
One of the most expansive systems of legal pluralism was found in ancient India, where individuals were part of “several…corporate bodies simultaneously.” For example, a weaver would belong to a (1) caste, (2) a guild, (3) a village, and (4) “live on land controlled by…a temple.” Moreover, the weaver would also probably live under the jurisdiction of a local feudal ruler and a more distant monarch. All of these groups and entities would have their own courts and laws, allowing for multiple “legal limitations and possibilities.”
Medieval European states also contained multiple legal jurisdictions within the same territory: local, feudal, royal, and ecclastical courts. Litigants could jump from court to court to seek a favored ruling. An example of legal pluralism from medieval France occured when Sir Jean de Carrouges, a French knight sought redress against Jacques Le Gris for the rape of his wife in 1386. Upon an unfavorable ruling from his local lord, he appealed to the king and the parliament in Paris for a judicial duel: a fight to the death between the two parties. The alternative was a church trial that could have resulted in either monetary compensation or the acquittal of the defendant.
Other examples of legal pluralism include the Ottoman and Mongol empires. In the Ottoman Empire, different religious groups, such as Muslims, Orthodox Christians, Armenian Christians, and Jews had their own personal laws, supplemented by imperial administrative law. The Mongols allowed different peoples—Mongols, Persians, Slavs, Chinese—within their empire to adjudicate disputes through their own laws, even if they were all part of the same empire and dwelt together in the same city.
In the 19th century, many modernizing states abolished legal pluralism, old laws and privileges and replaced them with codes applicable to everyone. For example, Japan during the Meiji Period (1868-1912 CE) abolished the different legal privileges of its various classes and adopted a legal code based on the German legal code of the time. In the modern world, the question that could be asked is: are there benefits involving a system of legal pluralism? Certainly, there are reasons for the development and triumph of legal homogeneity. It is an asset for a state seeking to use the power of the law to enforce the same norms on all individuals within a society; its strength lies in its use as a tool of equality and modernization. If a state decrees that all children must attend school, no alternative tribal or religious court could rule otherwise on cases pertaining to this matter. Contracts and property transactions would be resolved in predictable ways that would allow economic growth.
However, there are also some downsides to legal homogeneity: all people within a jurisdiction, regardless of their needs, values, or cultural backgrounds, are subject to the same set of inflexible laws. While it may be necessary to have common criminal and administrative laws, it is reasonable for there to be some flexibility on civil matters. Furthermore, some competition between legal systems within a jurisdiction may produce better and more favorable outcomes for litigants. Legal pluralism may be particularly useful in the context of contentious cultural and moral issues—in a jurisdiction that practices legal pluralism, it would be harder to enforce the preferences of one faction on another, and outcomes would be more individualized and particular to the litigants.
In an increasingly interconnected world, it is inevitable that legal systems will mix within the same jurisdiction, reflecting the desire for people from different backgrounds to seek different outcomes. Legal pluralism can also develop in modern circumstances where different types of law are needed for different tasks. For example, Dubai uses Islamic law for personal matters and Common Law for commercial issues. The ancient and medieval worlds are filled with numerous examples of legal pluralism that can help us think through how we can structure legal pluralism in the contemporary world. This should be done in a way that respects both the benefits of modern legal equality and the need for flexibility in contemporary societies.
Author Biography: Akhilesh (Akhi) Pillalamarri is the moderator-in-chief of the International Law and Policy Brief at The George Washington University Law School. Prior to law school, he worked as an international relations analyst, writer, and journalist. His interests include international, comparative, and national security law.