(2012) JLP 65: 1-30
LEGAL PLURALISM AND THE DISTINCTIVENESS OF LAW
Mariano Croce
Abstract
The present article pursues two basic aims. Firstly, it canvasses the idea that there is no normative difference between state law and other kinds of law, such as customary law or religious law, and that eventually there is not a clear dividing line between the various normative fields of social reality (from interactions of everyday life to legal activities). The author explores this ‘panlegalistic’ paradigm by integrating the analysis made by Gordon R. Woodman about the nature of customary law with a Wittgensteinian reading of the ‘practice theory of norms’ by Herbert L.A. Hart. After emphasising the conceptual advantages of this approach, the article puts forward an hypothesis meant to unravel a conceptual impasse which it incurs, that is, the impossibility of explaining what differentiates legal from social normativity. To this end, the author suggests that law should be seen as a trans-sectional and insulated venue, separate from everyday life, in which everyday reality can be renegotiated and rephrased by means of a special knowledge (usually mastered by a circle of experts) and a rigid set of conceptual categories.