University of Malta

Faculty of Laws

CVL1000 - Comparative Legal Systems and Legal Pluralism

Assignment (90%)

Describe, compare and contrast all the rules and norms you have
encountered on the day in which you chose to start writing this
assignment. Do you consider any/all of these to be law? To what extent
would any/all of these considered to be legal norms, rather than rules
of practice, custom, morality or etiquette by different theorists of legal
pluralism (such as Twining, Griffiths, Tamanaha and Pospisil amongst
others)? Which concepts and theories convince you the most and why?

Francesca Vassallo
(ID: 0236801L)

June 2020
Table of Contents

1. Introduction………………………………………………………………………………..2
2. A Reflective Analysis………………………………………………………………………4
3. Theories of Legal Pluralism………………………………………………………………..7
3.1 Twining’s View on Normative and Legal Pluralism…………………………………..7
3.2 Tamanaha’s View on Legal Pluralism…………………………………………………8
3.3 Ehrlich’s Theory of ‘Living Laws’…………………………………………………..10
4. Conclusion………………………………………………………………………………..12
5. Bibliography………………………………………………………………………………13

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1. Introduction

By simply being present and active in any society, one can say that they encounter laws,
norms and rules every day of their life, sometimes even without them knowing. Law exists
wherever shared rights and duties are found. As Black’s Law Dictionary states, law is:

‘That which is laid down, ordained, or established. A rule or method according to

which phenomena or actions co-exist or follow each other. Law, in its generic
sense, is a body of rules of action or conduct, prescribed by controlling authority,
and having binding legal force’.1

Various theorists have upheld a broad understanding of law, such as Eugene Ehrlich who
believed that law is found everywhere, ‘ordering and upholding every human association’.2
Ehrlich also creates a distinction between positive laws, which are state laws that are
enforced officially, and living laws which are social norms that regardless of whether they
have been recognised by the state or not, are law itself.3 Brian Z. Tamanaha criticises the use
of a wide definition of law and holds that non-state norms are the most important norms that
require ‘positivising’ to become legal norms.4

In recent years, a new concept has become essential in the study of law, that of legal
pluralism. This can be considered as a response to globalisation and cultural diversity. John
Griffiths defines legal pluralism as ‘the presence in a social field of more than one legal
order’.5 This plurality, in the view of William Twining, is of various categories such as things

1 Bryan A. Garner, Black’s Law Dictionary (11th Edition, Thomas Reuters 2019).
2John Griffiths, ‘What is Legal Pluralism’ (1986) 24 Journal of Legal Pluralism and Unofficial
Law.
3 Ibid.
4Brian Z. Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to
Global’ (Legal Studies Research Paper Series, May 2008) <http://ssrn.com/
abstract=1010105> Accessed Monday 18 May 2020.
5 Ibid.

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that are ‘conventionally regarded as legal, others that are generally regarded as “non-legal,”
and some (such as “soft law” and religious law) that are contested’.6 As Brian Z. Tamanaha
simply states, ‘legal pluralism is everywhere’.7 All writing about legal pluralism adopts or
presupposes a broad concept of law that extends beyond ‘state law’. This assignment shall
give a reflective account as to what rules and norms I have personally encountered on a
specific day, as well as go into further detail with regards to the theories of Tamanaha,
Twining, and Ehrlich.

6William Twining, ‘Normative and Legal Pluralism: A Global Perspective’ (2009) 20 Duke
Journal of Comparative and International Law 473.
7 Ibid.

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2. A Reflective Analysis

Our lives have changed drastically since the Covid-19 pandemic first hit Malta in early
March of this year. The day-to-day activities we took for granted now seem like a luxury. We
have had to adapt to a new normal for the time being. While some aspects of my life have
remained the same, new legal norms have been introduced that have changed the way I
would usually go about my day. This assignment shall give a detailed account as to the kind
of rules and norms I encountered on the day in which I started writing this assignment. The
aim of this assignment is to examine which of these rules and norms I would consider to be
law.

Jurists often take a substantive approach to law, taking state laws and rules as a general
definition. On the other hand, social scientists adopt a more functional definition of law,
taking into account normative traditions and practices.8 My personal view on law is that it
includes both state laws and non-state norms. Something I do every day which I would
consider to be a norm is washing my face and brushing my teeth as soon as I wake up and
before I go to bed. I would also consider making a cup of coffee in the morning as a norm, as
I cannot start my day without it. In order to be productive, I aim to wake up at around 8:30
A.M every day, to make sure I get the most out of my day. I also aim to exercise for at least
ten minutes every day, however, I don’t consider this to be a strict norm since it depends on
how full my day is.

On this particular day, I had a 9 A.M lecture and a 4 P.M which were to be held via an online
platform. Online lectures have become a norm during this time after the legal notice on the
closure of all educational establishments came into force.9 However, rules and norms that
applied in a normal lecture hall environment still apply to online lectures, such as respecting
the lecturer and being able to hold a discussion. This new way of learning is a sharp contrast
to being able to physically attend University and be with all my friends, but for the time

8William Twining, ‘General Jurisprudence’ (2005) 39 Anales de la Cátedra Francisco Suárez

645.
9 Closure of Schools Order, 2020 (LN 41 of 2020).

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being it is the best way to go about learning. My family and I had to create our own rules of
not making too much noise when one of us is in a lecture or meeting.

Going outside nowadays mainly consists of taking my dog for a walk, going on a long drive,
and buying groceries, for which new legal norms have been put in place such as wearing a
mask to enter supermarkets and not being in a group of more than four people when going
outside. I would consider these to be law since they carry with them a fine if someone goes
against them. When taking my dog for a walk, I always make sure that I respect the law of
removing his faeces by carrying a dog bag with me and always keeping him on a leash when
walking in the street.10 I also respect the law of not entering public spaces with my dog which
have signs prohibiting the entry of such animals.11 These established state laws also carry
with them a hefty fine when breaking them. When going for a drive, my family and I make
sure to follow driving regulations such as always wearing a seatbelt and not exceeding the
speed limit, which also carries with them repercussions for not following them.12 I am also
making sure that when going out, I am respecting the social distancing rules that have been
put in place.

Inevitably, a lot of my time is being spent in front of the television or scrolling through social
media. I would consider these activities to be norms since they are something that I do every
day without fail. Another activity that has become a norm during these times is watching the
daily updates given by the Superintendent of Public Health every day at 12:30 P.M in order to
keep me informed on the situation in Malta as well as to be aware of new regulations that
have been put in place.

I encounter a number of rules and norms in my everyday life, some of which are more
obvious than others. Established laws such as driving regulations and those that come with
taking my dog out are ones that I would consider to be strict state laws. Nowadays, we are
living in a new reality in which going out in small groups and wearing a mask to enter shops

10 Dogs Act [Control of Dogs Regulation] 2001 (SL-312-01).

11 Ibid.
12 Traffic Regulations Ordinance [Motor Vehicles Regulations] 1994 (SL-65-11).

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is also considered to be law. However, most of the rules and norms I encounter in my day-to-
day life I would not consider to be law. This is because they are norms that I established
myself and breaking them would not lead to any repercussions.

6
3. Theories of Legal Pluralism

3.1. Twining’s View on Normative and Legal Pluralism

In his study, Twining examines the relationship between legal pluralism, normative pluralism
and general normative theory by looking at them from a global level. His main concern is the
view that legal pluralism is a ‘species’ of normative pluralism13. Normative pluralism broadly
refers to the coexistence in the same time-space context of multiple systems of norms or rules
or of institutionalised normative orders.14 Twining believes that normative pluralism is a
social fact, since we encounter it every day. As previously mentioned, this plurality consists
of things that are generally regarded as legal, non-legal, or questionable.15 Setting aside what
is legal, Twining creates three categories; institutionalised normative orders such as a
university or large organisation; a system, code, or discrete set of norms such as a state
constitution; a looser collection of norms such as lecture routines; and a few singular norms
such as bans on smoking in certain places that do not belong to any system.16

Normative pluralism is directly linked to general normative theory. Despite the efforts of
many jurists, a system of basic concepts of rules and norms has still not been achieved, let
alone a unified theory of general norms.17 Twining views normative pluralism as the way in
which we can make sense of the wide range of rules, norms and practices we encounter in our
every day lives.18 The general theory of norms gives rise to three topics: norms, rules and
related concepts; classification of norms; and problems of individuation.19 By norms and
rules, Twining is referring to ‘general prescriptions that guide behaviour and provide reasons
for action’.20

13 Ibid.
14 Ibid.
15 Ibid.
16 Ibid.
17 Ibid.
18 Ibid.
19 Ibid.
20 Ibid.

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Twining creates a distinction between the legal and non-legal norms that fall under social
norms.21 That is to say, the norm of brushing one’s teeth is not considered to be a legal norm.
However, there is a sense of ambiguity in this distinction. As Twining states:

‘Social norms may refer to the norms of a given group, community, or society or
they may refer more broadly to any norm that guides or governs social
relations’.22

Taking the vast amount of literature into account, that all deal with social norms and
unofficial law, Twining brings to the table a new, positivist, approach to legal pluralism, the
‘social fact’ view of legal pluralism.23 This is a broad concept of law that gives importance to
institutionalised normative orders or sets of rules. He states that ‘if one adopts a broad,
positivist, conception of law, legal pluralism is as much a social fact as normative
pluralism’.24 Legal pluralism is not a new concept and is present in most multi-cultural
societies, which nowadays means most societies. A clear example of this is the presence of
religious courts and tribunals that impose their own sets of norms and rules for their
community.

3.2. Tamanaha’s View on Legal Pluralism

Tamanaha brings forward six systems of normative ordering in social arenas, since a legally
pluralistic society will often include multiple sources of normative ordering.25 He separates
the forms of normative ordering into the following six categories: ‘official legal systems;
customary/cultural normative systems; religious/cultural normative economic/capitalist
normative systems; functional normative systems; community/cultural normative systems’.26

21 Ibid.
22 Ibid.
23 Ibid.
24 Ibid.
25 Ibid.
26 Ibid.

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Official legal systems are linked to institutionalised legal systems and are found in the
legislature, tribunals and agencies of enforcement. This category includes all that is typically
regarded as law or as legal, ranging from traffic laws to human rights.27 Tamanaha states that
‘official legal systems can coexist in an uncoordinated fashion in a given social arena with
different sources and institutions that can conflict with one another’.28 An example of this
would be citizens of the European Union, who are subject to both national laws as well as
European law. These two versions of official law are not completely harmonised with each
other, since they derive from two different institutions that may have conflicting norms and
administration.

The other five categories are separate from official legal systems. In a customary normative
system one would find ‘shared social rules and customs, as well as social institutions and
mechanisms’.29 Religious normative systems are similar to customary normative systems in
the sense that they can both be considered as aspects of culture.30 However, Tamanaha places
religion in a separate category because ‘it is often seen by people within a social arena as a
special and distinct aspect of their existence’.31 Norms are usually set out in written texts and
formal religious institutions. Although these two categories are separate from official legal
systems, some norms can achieve legal status either by recognition by an official legal system
or on their own terms.

Economic/capitalist normative systems relate to a number of norms that are associated with
capitalist production and market transactions within a social field.32 Most of these norms are
not considered to be ‘legal’ norms; a subdivision of these norms are recognised by official

27 Ibid.
28 Ibid.
29 Ibid.
30 Ibid.
31 Ibid.
32 Ibid.

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legal systems, while some are independently regarded as legal.33 Functional normative
systems deal with a particular ‘function, purpose or activity that goes beyond purely
commercial pursuits’.34 Examples of these systems include universities, schools, museums,
hospitals, and sports leagues. Tamanaha states that these:

‘All possess some degree of autonomy and self-governance aimed at achieving

the purpose for which they are constituted, all have regulatory capacities, all
have internal ordering mechanisms, and all interact with official legal systems at
various junctures’.35

Community/cultural normative systems are the vaguest category. This system recognises
groups that have a common way of life, that usually consist of a common language and
history and contained in a geographical area.36

3.3. Ehrlich’s Theory of ‘Living Laws’

Eugene Ehrlich developed his descriptive theory of law as a challenge to the traditionalist
theories of his day. He determined that society consists of a combination of normative and
official organisations.37 The key to his theory is the distinction between ‘rules of conduct’ and
‘rules for decision’.38 He states that for legal positivists, law consists of ‘rules for decision’,
that derive from state officials. However, he argues that this ‘stands in the way of a real
theoretical science of law, which must be independent of the practical concerns of the
administration of state institutions’.39

33 Ibid.
34 Ibid.
35 Ibid.
36 Ibid.
37Sahib Singh, ‘Eugene Ehrlich’s ‘Living Law’ and its Legacy for Legal Pluralism’ (2010)
<https://ssrn.com/abstract=1660606> Accessed 21 May 2020.
38 Ibid.
39 Ibid.

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A scientific approach to law concerns itself with rules of conduct. Ehrlich also states that a
descriptive approach to law must deal with rules of conduct rather than rules for decision. He
says that this is because ‘the actual use - the organising function - of rules is more central to
law than their role in dispute settlement’.40 This element is found in his idea of the ‘living
law’: ‘the law which dominates life itself even though it has not been posited in legal
propositions’.41 For Ehrlich, the concept of a social group and that of rules of conduct are
inseparable from each other. For him, social and religious norms are living laws, and are not a
source of law but law itself, irrespective of whether they are recognised by the state or not.

40 Ibid.
41 Ibid.

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4. Conclusion

In my opinion, the theory that convinces me the most is Twinings’ view on normative and
legal pluralism. This is due to the fact that most rules and norms that I encounter on a day-to-
day basis are not considered to be legal norms, and most activities will fit into the categories
he created; institutionalised normative orders, such as attending University; discrete set of
norms, such as the legal notices and health advice that was published due to the Covid-19
pandemic; and a looser collection of norms such as lecture routines and taking my dog for a
walk. His distinction between legal and non-legal norms can also be applied to my everyday
life, since norms such as driving regulations and those that regulate dog-walking are
considered to be legal, while norms such as brushing my teeth and making breakfast are not
considered to be legal.

12
Bibliography

• John Griffiths, ‘What is Legal Pluralism’ (1986) 24 Journal of Legal Pluralism and
Unofficial Law.
• Brian Z. Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to
Global’ (Legal Studies Research Paper Series, May 2008) <http://ssrn.com/
abstract=1010105>.
• William Twining, ‘Normative and Legal Pluralism: A Global Perspective’ (2009) 20 Duke
Journal of Comparative and International Law 473.
• William Twining, ‘General Jurisprudence’ (2005) 39 Anales de la Cátedra Francisco Suárez
645.
• Sahib Singh, ‘Eugene Ehrlich’s ‘Living Law’ and its Legacy for Legal Pluralism’ (2010)
<https://ssrn.com/abstract=1660606>.
• Bryan A. Garner, Black’s Law Dictionary (11th Edition, Thomas Reuters 2019).
• Brian Z. Tamanaha, ‘What is Law?’ (Washington University in St. Louis Legal Studies
Research Paper No. 15-01-01, 2016) <https://ssrn.com/abstract=2546370>.
• Closure of Schools Order, 2020 (LN 41 of 2020).
• Dogs Act [Control of Dogs Regulation] 2001 (SL-312-01).
• Traffic Regulations Ordinance [Motor Vehicles Regulations] 1994 (SL-65-11).

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