Vol. 10 No. 1 (January 2000) pp. 38-41.

LEGAL PLURALISM: TOWARD A MULTICULTURAL CONCEPTION OF LAW by Warwick Tie. Brookfield, VT: Ashgate Publishing Co. 1999. 285 pp.

Reviewed by Nancy V. Baker, Department of Government, New Mexico State University.

Warwick Tie, a New Zealand legal scholar, provides a provocative examination of various contemporary legal theories in his quest to frame a conception of law that can accommodate the demands of diverse communities. "The image of law," he writes, "must change from an institution that finds the 'right answer' to disputes to one that negotiates patterns of consensus and dissensus" (p. 174).

Empiricists, be forewarned. This is a book of theory, unlike earlier works on legal pluralism by Sally Engel Merry or John Griffiths. In fact, given the dearth of "real life" examples (tangential references to New Zealand, Chile, Australia and Brazil notwithstanding), the empiricist might feel somewhat frustrated. However, Tie's project is valuable for the empiricist who seeks a firmer theoretical grounding for his or her work. Further, Tie's quest is an important one. Nation-states increasingly face political contestation arising out of cultural diversity. As he notes, the "diversification of socio-cultural identity within nation-statehood" poses a challenge for existing legal orders. A failure by those orders to respond to this diversification could, in a worst case scenario, lead to "the demise of that whole politico-legal system (and the onset of civil war, for example)" (pp. 177-178).

However, the quest is also problematic. Throughout his book, Tie notes the tensions inherent in the struggle: how does one conceptualize law in such a way that it expresses common norms whereby we can live together while also tolerating our differences? International law scholars will recognize a commonality here with the universalist/particularist debate. In fact, the book is full of such dialects: between individual and community, centralization and decentralization, rationality and non-rationality, totality and indeterminacy, law and justice, 'belonging' and 'critical freedom,' consensus and dissensus.

Tie identifies the key tension as one between closure and critique. Closure -- with judicial pronouncements that provide resolutions - is a product of legal orthodoxy, while critique of that closure is a hallmark of new approaches that "appreciate the historically contingent and provisional nature of all legally-erected horizons" (p. 2). It is, he writes later, a tension "between the conservation of meaning (through the exercise of legal judgement) and the transformation of the processes through which meaning is constructed" (p. 183). Either extreme carries risks. At one end is the danger of a totalizing discourse that silences any alternative ideas; at the other is the danger of interminable fragmentation. For Tie, managing the tension between

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closure and critique is essential, since it cannot be safely ignored or satisfactorily resolved.

He begins and ends his book with an anecdote about a Maori man on trial for assaulting actors who reenacted the landing of Spanish colonists in New Zealand/Aotearoa in the 19th century. The man rejected the court's authority as a Eurocentric legal institution. Yet he could not request that the case be transferred to his culturally preferred institution -- the marae -- unless he first acknowledged the court's authority. He did not do so, and his trial proceeded. The judge assumed that his resistance to the proceedings was a plea of "not guilty."

The anecdote illustrates the inability of the prevailing positivist liberal conception of law to truly accommodate diverse communities. Even when a formal legal system attempts to meet indigenous demands, it frames those demands in the discourses of European liberal legal theory, which ironically results in "the recolonisation of indigenous peoples through the assimilation of their views VIA the language of LEGAL PLURALISM" (emphasis in original) (p. 8). Tie's goal is to frame a new conception of law that would not fall victim to this tendency.

Tie begins by defending the concept of multiculturalism against critics who assert either that it is disappearing in the face of a single consumer culture, or that it is too essentialist, ignoring the interpenetration of cultural identities. Instead, he attempts to carve out a middle ground, relying on the work of Fredric Jameson and Charles Taylor, wherein the individual is both embedded in cultural traditions and yet is capable of altering the terms of that embeddedness. He understands multiculturalism as "a process rather than a product" (p. 30). He appears to like this notion of process, applying it elsewhere in the book to reason (p. 185) and counterhegemony (p. 191).

Tie then examines and critiques the premises of orthodox jurisprudence as articulated by H. L. A. Hart, John Finnis, and Ronald Dworkin, who espouse positive legal theory, classical natural law theory and liberal rights theory, respectively. In each of these variants, Tie argues, positivism fails to provide a framework for reconceptualizing the law, because it is grounded on a number of fallacies -- that law is neutral and "above" society, that law and justice are related, that decision-making is rational, that legal norms are universal, that law is centralized in the state, etc. In dismissing positivism as a framework for a multicultural conception of law, he notes with approval the postmodern critique that positivist law is inexorably entwined with particularist viewpoints (bourgeois, masculinist, imperialist) that have repeatedly repudiated, repressed, and silenced the socially marginalised" (p. 120).

However, other "critical" perspectives precede Tie, and he must address the extent to which they can provide the framework he is searching for. The bulk of his book is engaged in this process, and he carefully examines realist, post-realist, postmodernist, pragmatist and post-pragmatist theories of legal pluralism as possible multicultural theories. This is conceptually rich soil, and Tie is able to harvest a number of interesting ideas. He draws heavily on their critique of hegemonic formal law, including these four themes: "the continuing dominance of centralist conceptions of the law, the progressive role of legal-rights discourse., the distinct identities of law and justice, and the arcane origins of justice" (p. 162). A key point

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here is that law and those who observe the law are located within socio-cultural diversity and not above it. He also borrows specific concepts. For example, from post-realism comes the idea that law needs to remain open to counterhegemonic critique. Postmodernism exposes law's 'unconscious' biases of class, race and gender. Pragmatism offers a conception of multicultural law that potentially could be universalized, in that it frames diversity as the thing, which we all have in common. Post-pragmatism is even more useful for Tie's task, in that it contributes the important idea that the Other can never be completely understood, and it "highlights the intrinsic role of the non-rational" (p. 158).

Despite these intellectual contributions, none of these theories is in itself adequate to the task of providing a multicultural conception of law that does not risk being absorbed back in positive law, or becoming a new hegemony, or disintegrating completely into incoherence. For example, Tie argues that none adequately addresses the origin or nature of justice, leaving it somehow privatized - that is, relegated to each individual's sense of right. Nor is there a clear indication of how these theories might motivate progressive political change, other than on a voluntary individualistic basis. Finally, many of these theorists write from "an abstracted, decontextualized position," without explaining how they managed to reach "these unsullied interpretative positions" (p. 114).

So, Tie advances his own theory based in part on the ideas of legal pluralism, but with the addition of naturalized evolutionary epistemology (NEE), which, he argues, provides new conceptual tools. NEE is, he argues, ontologically realist in that it assumes there is "a socio-biological materiality that exists independently of human thought" (p. 170), but is epistemological post-realist in that it assumes humans can never fully know this socio-biological world or their place in it, since their tools -- reason and perception -- are part of that world, not independent of it. Despite the fact that humans can never objectively know about their environment, the idea of objectivity is still useful because it leads them to imagine "a socio-cultural world" (p. 175) beyond themselves. In other words, it becomes part of their understanding of the larger environment. Tie also argues that human systems are motivated by a desire to survive, and therefore try to maintain environmental stability. When facing environmental changes, such as increasing cultural diversification, they can adapt in order to remain stable.

This approach permits the tension of closure and critique to exist without either resolution or dismissal. It recognizes that a space exists in which the tension can be negotiated or managed by people who are open to Otherness and willing to accept uncertainty and incompleteness. In the negotiation process, knowledge evolves and people change in response to their environments. Such a task is essential to the democratic project. Yet, as Tie suggests elsewhere, westernized individuals might be so wedded to the notion of the Rule of Law and the idea that law provides definitive resolutions to social conflicts that they may not be eager to embrace a new approach premised on uncertainty and contingency. It is for this reason that Tie insists that his theory accommodate "desires for law, closure and certainty ... as much as the need to locate jurisprudence within an ethical

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spirit that promotes the recognition of diversity" (p. 193).

The book is well argued, with subheadings and summaries of major points that guide the reader through the sometimes dense tangle of ideas. The organization also is solid, with the caveat that his treatment of procedural liberalism in chapter 8 usefully could have appeared earlier. Although the writing is competent, Tie occasionally succumbs to the temptation to use language to obfuscate rather than clarify (the words "aporia," "otiose" and "iatrogenic" come to mind). Another observation is that some of the ideas he introduces - e.g., epistemic reserve - would benefit from fuller treatment and more explicit linkage to his overall argument. Even so, these are not major faults in a book of this ambition.

Readers would be well served by a previous acquaintance with the works of Michel Foucault and Jacques Derrida, particularly in the book's first chapters. However, for readers not well versed with legal theory, Tie does a credible job of explicating the relevant ideas in the writings of Drucilla Cornell, Roy Bhaskar, Peter Fitzpatrick, Peter Goodrich, Alan Hunt, Boaventura de Sousa Santos, and others. For this reason, his work might be a fruitful addition to a graduate course that includes postmodern, post-realist and post-pragmatist theorists.