To Hybridity and Beyond: Reflections on Legal and Normative Complexity

Chapter 2
To Hybridity and Beyond: Reflections on Legal and Normative Complexity

Seán Patrick Donlan1

There are … no pure individuals, no pure cultures, no pure genres. All things are of necessity hybrid. Of course we can construct them to be relatively pure, and in fact we do so, which is precisely how we manage to get (new) hybrids from purebreds that are (former) hybrids.

—Brian Stross (1999: 266–67)

I have referred to my recent research on legal and normative complexity as the study of hybridity and diffusion, the modest investigation of the mixtures and movements of laws and norms, past and present and around the globe (see, for example, Donlan 2010b). I have argued that such research must be comparative across both space and time, involving comparative law and legal history, as well as the social sciences—especially anthropology and sociology—and legal philosophy. I suggest that my approach might prove a useful perspective from which to better understand the role that laws and norms play in the daily lives of ordinary people around the world (compare, for example, with Shahar 2008). This chapter attempts to briefly lay out the broad outlines of this approach and to encourage similar research through interdisciplinary and transdisciplinary collaboration.2 The chapter also takes a brief detour to discuss the Western folk concept of law. My intention is not to erect a new terminology or taxonomy but to sketch a rough conceptual map that allows scholars to better understand both legal and normative practices. I want to create a type of descriptive, critical, and constructive deep focus, analogous to the way in which that term is used in photography and cinema, wherein clarity in depth is achieved through significant light and sustained focus.

As I define it, hybridity relates to two related axes of investigation. The first is a distinction, whether seen as practical or philosophical, between normativity and legality. Although making a practical distinction rooted in contemporary convention dividing state law from nonstate norms may be a prudent approach to legal-normative scholarship, a deeper investigation shows that an earlier, more well-established convention separates laws and norms on the basis, in significant part, of institutional form. The result is that a meaningful definition of nonstate laws is available without applying law to all forms of normative ordering. The second axis divides the examination of normative and legal orders of various types on the basis of their respective titular principles and actual practice. This approach is far from revolutionary, but the investigation of both principles and practice must obviously go hand in hand if the subject of investigation is to be fully understood. For me, this approach has already proved useful in research on the present and the past. I have written, for example, on legal hybridity in Malta and proposed a wider project on legal and normative hybridity in the Mediterranean (Donlan 2011a; Donlan, Andò, and Zammit 2012). I have proposed the generation of histories of hybridity, “histories that take as their focus the plurality of past laws” informed by comparative analysis and the social sciences (Donlan 2010c: 22). I have written on eighteenth-century Britain and Ireland and the wider movement of Western legal history, from hybridity to comparative unity (Brown and Donlan 2011b; Donlan 2010a; 2011b). Recent research applies this approach to early nineteenth-century Spanish West Florida and to a wider project on jurisdictional complexity in Western legal history (circa 1600–1900).3 Hybridity and diffusion point toward a historical, comparative, and institutional theory that explores normative complexity by setting research on legality within the wider matrix of normativity.

As this introduction suggests, comparative and historical scholarship is important to my approach.4 Hybridity is not merely an element of the contemporary, formally colonized global East or South. Throughout Western history, a unified system of national state common laws is the historical exception rather than the rule. Before the rise of the state, laws, largely defined in institutional terms, already existed and competed both with rival legal regimes as well as with other forms of normativity. When such a system arose, the law of the state was parasitic on an established, conventional concept of law as well as, more importantly in practice, preexisting legal institutions.5 Recognizing this background has real benefits. Indeed, I have argued that “remembering” the hybridity of our own past “better [prepares us] to understand and address the pluralism of the present” (Donlan 2011b: 3). It does so, as António Manuel Hespanha (2004: 45) wrote in relation to legal history and legal education, by “deep[ening] the sense of complexity.”6 Indeed,

the mission of legal history is to render problematic the implicit assumptions of dogmatics, namely, the rational, necessary, ultimate nature of our law. Legal history accomplishes this mission [by] stressing the fact that law is necessarily bound to a cultural (in the deepest sense of the word) environment and, furthermore, that legal knowledge is also a “local knowledge” … whose categories are deeply rooted in historical epistemes. (Hespanha 2004: 41).

Acknowledging complexity has consequences not only for comparative law and legal history, but also for legal philosophy and the meaning of law. Hybridity challenges, for example, the dissection of plural and dynamic traditions into discrete, closed families or systems. More critically, hybridity undermines commonly held and conjoined beliefs in legal nationalism and positivism, legal centralism and monism. It points, in fact, toward a more plural jurisprudence.7

In sum, I suggest that jurists must take general normativity, beyond legality, seriously.8 But social scientists must also respect legality’s unique normative position. Both jurists and social scientists have much to gain from each other and from active collaboration. As the anthropologist Baudouin Dupret (1999: 31) has written in a different context, “Law must be stripped of its conceptual status and returned to the fold of general normativity.” Legality, which is inherently conventional, must be set within normativity. Nonstate normativity must be understood not as a minor add-on to provide context for state law, but as fundamental to the lives of people around the world, both in the West and beyond. And the scholarly ability to generate an accurate, if static, image of normative and legal traditions remains insufficient without attention to the degree to which its principles are implemented in practice and alter over time (see Halpérin 2011). I am not interested merely in legal and normative fixité, but in the complex and ongoing process of mixité (Drummond 2008: 169; see also Drummond 2005). In this sense, the diffusion or movement of laws and norms that generate different legal-normative mixes over time is an essential aspect of the study of hybridity (Donlan 2011a: 10–12).

Hybridity and Diffusion

In its origins, hybrid had a very narrow meaning. The Latin hibrida was “the offspring of a (female) domestic sow and a (male) wild boar” (Stross 1999: 254). In fact, a hybrid is still commonly seen as a complex individual entity, a singularity, from two parents. More recently, however, the word has become far broader in application. Indeed, the word in its current usage is arguably, “a slippery, ambiguous term, at once literal and metaphorical, descriptive and explanatory” (Burke 2009: 54). This more elastic meaning is, however, occasionally productive. In postcolonial studies, for example, hybridity serves as a critique of binary, reified thinking about cultures and their members. Instead, it emphasizes a very deep and dynamic complexity, “the ambivalent in-between space created by the interaction of the colonizers and the colonized” (Roy 2008: 340). Until the past few years, however, hybridity was only rarely used in legal and normative scholarship. When used by comparatists, hybridity is largely synonymous with mixity, the coexistence of diverse, discrete state legal traditions within a jurisdiction. It is a common but minor usage, often little more than a rhetorical relief from mixed (see, for example, Anthony 1992: 217). Less commonly, legal hybridity has been used in a manner equivalent to legal pluralism (see, for example, Holbrook 2010). Hybridization is almost unheard of.9 And when hybrid and its variants appear, there is little precision in their use.10 In recent years, I have tried to suggest how we might use hybridity as a term of art, in more constructive, nuanced ways to cover the fluid complexity of both laws and norms at the levels of both principle and practice.

My use of hybridity is related, in this general sense, to postcolonial scholarship. Although the focus of that work has been on individual identities, the same sense of hybridity can meaningfully be applied to the complexity of legal and normative institutions. This is especially true as both are deeply marked by colonial encounters and the diffusion of Western laws and norms. In descriptive terms, this use of hybridity is also closely linked to the scholarship of radical, critical, or postmodern legal pluralists (see, for example, de Sousa Santos 2002, Kleinhans and Macdonald 1997, Vanderlinden 1989). In different ways, these scholars argue, in a critique of the reification of laws or norms into discrete and closed systems, that law and plurality are best seen as products of individuals rather than institutions. This argument is, as Jacques Vanderlinden (1989: 152) phrased it, “not centered upon a given legal system but upon the sujet de droit … who can be subjected to many legal orders as a member of many networks.” Individuals are the constant, if incremental, creators of laws in a complex and fluid normative web. And although he could have been writing about the Western past as much as the present, Boaventura de Sousa Santos has noted, “We live in a time of porous legality or of legal porosity, multiple networks of legal orders forcing us to constant transitions and trespassing. Our legal life is constituted by an intersection of different legal orders, that is, by interlegality” (de Sousa Santos 2002: 437). If this statement neatly captures the dynamism and ubiquity of normativity, he adopts, along with many moderate legal pluralists, an overbroad, unconventional use of the word legality.11 And even if we accept the descriptive account of postmodern legal pluralists, we must be careful not to exaggerate the liberating potential of recognizing legal-normative hybridity. We must be careful, that is, to attend to the larger forces that drive subjects in their choices. Individuals may be the nexus of normative activity, but they do not generate norms ex nihilo. They may be little more than flotsam and jetsam in a hurricane (see Donlan 2012a). Hybridity, as defined here, may be seen as a jurisprudence rooted in normativity; it is not, however, intended to be a normative jurisprudence with prescriptive lessons for social life (Berman 2010). As de Sousa Santos (2002) states, “[T]here is nothing inherently good, progressive, or emancipatory about legal pluralism.”

Similar to the approach of these theorists of radical normative hybridity, my approach stresses that laws and norms always exist in a complex and fluid web that can only roughly be captured in the language of pan-national legal and normative movements. Hybridity does not emphasize the marriage of two relatively discrete and self-contained sections, as in most discussions of mixed legal systems, but the deeper complexity shot through every aspect of legal and normative orders. Assigning labels to the different fragments of an order, no less than to the order itself, is always an approximation that will fail to capture the nuances of actual practice. Orders, including more institutionalized legal regimes and state legal systems, are never closed, never static. Norms, whether legal or nonlegal, are always in flux, stabilized only—though profoundly, in fact—by the weight and inertia of convention, of traditions, and of practices. Still, the aggregative normativity and legality of corporate communities and their institutions must be taken seriously. This is, of course, the natural concentration of much legal and social science. Accepted as working generalizations, as useful shorthand that allows us to get work done, this communal or institutional focus need not involve reification, deny individual possibility, or ignore complexity. It offers, however, a manageable viewpoint from which to understand legal-normative creation and negotiation. Indeed, an individual focus can blind us to these wider patterns of normative influence.

Finally, note that hybridity, understood in this way, has gone hand in hand with diffusion, the movements that generate legal-normative complexity.12 The discussion of diffusion is, in fact, common among comparatists, in a bewildering and occasionally enlightening vocabulary of receptions, transplants, transfers, contaminations, irritants, migrations, and transfrontier mobility of law.13 Michele Graziadei (2006) has even suggested, reflecting a rich vein of Italian comparative scholarship that explores law in context, that we can see “[c]omparative law as the study of transplants and receptions.” And the study of diffusion by jurist William Twining extends this vocabulary beyond the law. In what deserves to be quoted at length, Twining (2004: 34–35) suggests how complex these processes are:

(i) Relations between exporters and importers are not necessarily bipolar, involving only one exporter and one importer. The sources of a reception are often diverse.

(ii) Diffusion may take place between many kinds of legal orders at and across different geographical levels, not just horizontally between municipal legal systems.

(iii) The pathways of diffusion may be complex and indirect and influences may be reciprocal.

(iv) Diffusion may take place through informal interaction without involving formal adoption or enactment.

(v) Legal rules and concepts are not the only or even the main objects of diffusion.

(vi) Governments are not the only, and may not be the main, agents of diffusion.

(vii) Do not assume one or more specific reception dates. Diffusion often involves a long drawn out process, which, even if there were some critical moments, cannot be understood without reference to events prior and subsequent to such moments.

(viii) Diffusion of law often involves movement from an imperial or other powerful centre to a colonial, dependent, or less developed periphery. But there are also other patterns.

(ix) The idea that transplants retain their identity without significant change is widely recognized to be outmoded.

(x) Imported law rarely fills a vacuum or wholly replaces prior local law.

(xi) Diffusion of law is often assumed to be instrumental, technological, and modernising. But there is a constant tension between technological, contextual-expressive, and ideological perspectives on law.

(xii) There is a tendency in the diffusion literature to talk of receptions “working” or “failing.” Only recently have attempts been made to evaluate and measure impact empirically. Many of the instruments that have been developed are suspect, but this is an area that needs serious academic attention.

Normative diffusion is obviously still more complex, but Twining’s sophisticated understanding of its complex relation to law (see Twining 2005; 2006; 2007) parallels similar discussions within the social sciences and suggests how we might better understand the processes that give us “(new) hybrids from purebreds that are (former) hybrids” (Stross 1999: 267).

Normativity and Legality

The first axis of hybridity, at least as understood here, is a distinction between normativity and legality. This division may be seen as merely practical, allowing us to get on with research on various normative forms by accepting modern conventional distinctions between nonstate norms and state laws. At a deeper philosophical and conceptual level, however, social norms (norms) and legal norms (laws) should be seen as conceptually distinct, though without any necessary reference to the state, a very late and specific institutional normative form. According to the Oxford English Dictionary, which effectively records the cumulative, conventional usage of terms and the concepts to which they are assigned in practice, a norm “is a model or a pattern; a type, a standard.”14 This usage is long established, but it originally grew out of the Latin norma, a craftsman’s tool used to create right angles. Such norms—and related normative communities of various sorts—appear to be a universal aspect of human existence. We are normative animals, expressing evaluative judgments of appropriate claims and conduct. Normativity is thus universal. Legality is not. Laws, as defined by centuries of Western convention, are points on a normative continuum and always rest within the wider matrix of less institutionalized normativity. Legal norms are a subset of social norms. But if laws and norms may be distinguished in this way, they cannot be divorced. For this reason, jurists must take general normativity seriously, and social scientists must respect legality’s unique normative position.

As I suggested, the state may be used, for convenience, to mark the border between the legal and the nonlegal. This approach largely reflects juristic practice and more general modern understandings of nonjurists across the West for much of the past two centuries. In this sense, such a distinction is meaningful, defensible, and accepted in practice by jurists, many social scientists, and the public. And state laws are distinct, at least in practice, from other norms. For much, though admittedly not all, of the world, the modern state and state legal systems play a critical role that should not be ignored (Roberts 2005). This simple law–norm division, largely accepting a central defining role for the state, is the approach taken in the Mediterranean Hybridity Project.15 An initiative of Juris Diversitas, that project is developing a collaborative transdisciplinary network of experts to produce national reports and cross-cultural analyses of the legal and normative complexity of the region. The project marries conceptual and empirical models from the legal and social sciences to investigate the principles and practices of (a) diverse state laws (including those of customary and religious origin) and (b) lived nonstate norms (especially nonstate justice systems).16 This information will assist the work of academics, practitioners, policy makers, and civil society organizations, as well as the wider community. But the choice, in effect, of state ratification as establishing the law–nonlaw boundary is merely a practical maneuver. Accepting this simple—perhaps simplistic—division is an attempt to bracket or set aside deeper, passionate philosophical debates in the interests of generating useful data.17 Indeed, this definitional fiat has not limited the range of our study. If minor nonstate norms, such as the rules and principles of etiquette (although even social mores may extend to significant taboos), are not included, others—especially so-called nonstate justice systems—may be quite significant in practice. Although we may find that norms are encircled and hemmed in by the state, we may also find that laws act in the shadow of very meaningful nonstate norms (compare Coorter, Marks, and Mnookin 1982).

Defined in this manner, legal hybridity obviously includes the study of mixed legal systems, Western or non-Western, where the diverse origins of state laws lie in reasonably visible and frequently discrete, identifiable sections.18 This category is already quite large, including my native Louisiana, as well as Malta, Turkey, and much of the world.19 These mixed systems, including some quite exotic hybrids, were often the result of Western political expansionism and the diffusion of its laws. Especially through colonialism, Western laws came into contact with numerous other legal and normative traditions: Asian, Hindu, Islamic, a wider variety of customary traditions, and so on. Some of these traditions were already complex hybrids, but the addition of Western laws—either by imposition or through borrowing under Western hegemony—further complicated the normative spaces of much of the world. The global result was a number of coherent, if not closed, legal traditions that are both national and meaningfully pan-national. Far-flung jurisdictions, including many postcolonial states, continue to look to the mother traditions for guidance. But context is everything. Although simplistic taxonomic classifications may be necessary for pedagogical and professional purpose, it is mistaken and deeply Eurocentric to assume, for example, that India is best classified as an Anglo-American system or that China is best classified as belonging to the continental legal traditions, without recognizing the practical importance of the different contexts (for example, Chelsea and Kolkata) and the presence of additional, competing traditions, Western and non-Western, within law and without (see, for example, Castellucci 2012).

Indeed, if one draws deeply on comparative legal history and the extensive comparative literature on the processes of diffusion, the recognition of legal hybridity extends much further. Legal hybridity is, as Vernon Palmer (2007: 1210) notes, “a universal fact.” All state laws are examples of what social scientists call state or weak legal pluralism. The legal system remains, at least in theory, unified. Jurisdictional conflict is handled, either formally or informally, by state institutions, whose recognition or ratification, if it comes, effectively converts the rules and decisions of other orders (including state-sanctioned customary orders) into state laws. This conversion need not happen explicitly; the complex and varied ingredients of a legal tradition may lie hidden below the state law’s superficial surface. This process applies even to England: “Europe’s multifarious legal traditions were forever in motion towards new permutations and equilibria. If the triumphalist dominance of its common law often obscures English legal hybridity and diffusions, this kaleidoscopic motion was, and is, no less true of the Anglo-American legal traditions” (Donlan 2010a: 290–91).

Indeed, in an article that is especially important to the approach taken here, Esin Örücü (2004: 363; see also Örücü 2007) has proposed a “family trees” approach that “regards all legal systems as mixed and overlapping, overtly or covertly, and groups them according to the proportionate mixture of the ingredients.” This genealogical method combines both top-down and bottom-up perspectives, the formal codes and informal contexts of the law, to explore the “various degrees of hybridity” found around the globe (Örücü 2004: 367). Although these ancestors may have little continuing control over their progeny, the recognition of historical hybridity alerts us to the complexity of even the most ordinary and apparently autochthonous system.20 Indeed, as Örücü (1996) stressed in an earlier article, change is necessarily change over time: we must take both “mixed and mixing systems” seriously.

What is just as important is that neither the state nor those laws that preceded the state have ever had normative exclusivity. There has been—and is now—no unified and pure legal or normative space, controlled respectively by either an all-embracing state or an all-embracing society. Instead, laws and norms always rest within the wider web of strong or deep legal pluralism—the totality of normative orders and more diffuse normative influences. What I call normative hybridity is often referred to in contemporary social science as legal or, more recently, normative pluralism