Institutional hybrids and the rule of law as a regulatory project

Abstract

Legal pluralism – as practice and theory – is frequently viewed as a functional response to the diversity of legal culture and practices around the globe, or, as Michaels (2009) so succinctly observes, as a process driven by pressures from below for the recognition of local customs or norms. Such a bottom-up perspective elides the questions of “who” promotes these experiments and for “what” reason. In essence, we argue that legal pluralism should not be judged by its own terms, but rather understood as a technology of jurisprudence that provides templates for institutional entrepreneurs such as transnational agencies as they develop novel institutions of legal governance. This essay is a first cut at analyzing the emergence of legal pluralism as a regulatory project within the field of “law and development.” The term regulation is extensively used here to describe the system of rules and standards governing the conduct of agents or organizations. Regulatory projects grounded in the theory and practice of legal pluralism are attempts to steer “rule of law” programs via the incorporation of private or civic actors within institutional hybrids. These projects carve out spaces of legal governance that lead to the juridification of civic or customary legal regimes. Using customary regimes – often around reinvented customary practices – has resonance with regimes of legal governance in the late colonial state (Mamdani 1996). A regulatory focus places the accent on those new institutional forms through which localized legal and social norms are given recognition and authority in seeking to implement the rule of law. Institutions, not the diversity of legal culture, need to be at center stage in the study of legal pluralism. Within a law and development context, we need to ask why legal pluralism has become such an important question for many transnational actors and organizations involved with legal and governance reform? Proceeding from this question – rather than from the usual question, “What is legal pluralism?” – allows us to problematize rule of law projects as forms of institutional bricolage, that is, the conscious attempt of actors to weave new institutional forms by drawing on past social and cultural practices. More than that, the diverse institutional experiments subsumed under the label of legal pluralism are not a product of the purely “local” circumstances and norms, but rather stand at the intersection of the local and transnational legal order.