The term 'law' should be taken in a broad sense to refer to social control

(Griffiths). Discuss

Introduction

It has been argued that the concept of law is notoriously difficult to define, as
scholars across different disciplines (jurisprudence, legal sociology, and legal
anthropology) have struggled to attain scientific or cross-cultural precision in defining
the concept.1 Tamanaha suggests that attempts to define the term ‘law’ have either
been centred on norms, the institutions responsible for enforcing the norms or a
combination of both.2 Nevertheless, a consequence of the imprecise definition of law,
is the existence of a broad spectrum of definitions. While on the one hand, law has
been conventionally understood to mean state law, 3 Sally Falk Moore notes, on the
other hand, that the concept is also susceptible to being so broadly defined that it
becomes indistinguishable from a “study of the obligatory aspect of all social
relationships”.4

This essay serves a critical discussion of the conception of law vis-à-vis John
Griffiths’ broad understanding of law as social control. The essay is divided into three
parts. The first part undertakes a discussion of law as social control. It considers
various scholarly contributions in this regard, with particular attention to Griffiths’
postulation. The aim of this is to examine whether (and if so, to what extent) Griffiths’
postulation can be validly sustained. Accordingly, possible merits of Griffiths’ view
are highlighted. Nevertheless, the essay submits that Griffiths’ view should be
understood as part of the wider school of thought of legal pluralism, which seeks to
broaden the scope of law to accommodate other social/normative orders.

Building upon this understanding, the second part of essay juxtaposes the broad
conception of law espoused by Griffiths and other legal pluralists, with the views of
scholars such as Roberts and Tamanaha, who caution on the need to remain
circumspect in prescribing what counts as ‘law’. Against this background, the essay
1
Brian Z. Tamanaha, ‘The Folly of the ‘Social Scientific’ Concept of Legal Pluralism’ (1993) 20(2)
Journal of Law and Society 192, 199.
2
Ibid.
3
Baudouin Dupret, ‘What is plural in the law? A praxiological answer’ (2005) OpenEdition Journals
available at: <https://journals.openedition.org/ema/1869?lang=en> accessed 31st May 2021
4
Sally Falk Moore, Law as Process: An Anthropological Approach (2nd Edition, Transaction
Publishers) 220.

1
argues that while different forms of normative order/social control bear semblance
with the law – and appeal to conventional understanding of the law – it is neither
desirable nor expedient to equate such systems of social control with the law.
Specifically, the essay finds merit in the view that the law is distinctive from other
normative orders or systems of social control. Hence, widening the scope of the term
‘law’ to include normative orders, could erode the distinctive nature of law, whilst also
potentially rendering the term unhelpful for scholarly analysis; the net effect of which
would be to obfuscate the boundaries between the law – as we have come to
understand it – and other systems of social ordering. Furthermore, it is argued that
the expansionary logic of applying the term ‘law’ to wider systems of social
control/negotiated orders is likely to efface the rationality behind these negotiated
orders.

The final part of the essay takes a broader thematic approach. It discusses the wider
relevance and implications of the conception of law. Specifically, it considers why, if
at all, our conception of the law is important and what this means for the study and
understanding of the law. The essay concludes that, contrary to Griffiths’ view, it is
problematic to refer to law in broad terms of social control.

1. Law as Social Control

Understanding Law as Social Control

A crucial starting point in the discussion is an examination of the concept of law as

social control. Although the present course of enquiry is centred on John Griffiths’
postulation, he was not the first scholar to conceive of law in this regard. Sociologists
previously examined the role of law as a means of social control, through the lens of
various subsets or variables. Donald Black for instance, proposed the concept of the
sociology of law, which features as its variable, “the behaviour of law”. 5 Through the
lens of the behaviour of law, he defined law as governmental social control. 6
Curiously, Black excludes (legal) rules from his analysis of law and this arguably
makes his submission incoherent, as it becomes difficult to differentiate between

5
Donald Black, The Behavior of Law (New York: Academic Press, 1976).
6
ibid.

2
social control and other forms of behaviour.7 Eugene Litwak argued, through the
subset of punishment, that the law curbs deviant/potentially deviant behaviour, by
serving as a disincentive from socially unacceptable conduct. 8 Litwak also suggested
that the law ensures that those within its purview internalise the values and goals
embodied in it.9 By the collective operation of these outcomes, the law serves as a
form of social control. However, a noteworthy point about these sociological
perspectives is that they appeal to the conventional understanding of law, wherein
the state/government plays a central role.10 Thus, for the instant purposes, they do
not merit further consideration.

Malinowksi, a renowned anthropologist, also considered law as social control. He

examined the case study of Trobian Islanders in New Guinea, who engage
predominantly in fishing and practice a system of common ownership of canoes.
Malinowksi suggests that, to the uninformed eye, they might appear to be a primitive
society.11 However, he posits that this community illustrates the existence of law
beyond its conventional understanding. In particular, he notes that law is evident in
the system of binding obligations, marked by social and psychological
inducements.12 Thus, he maintains that it is possible to understand law as a system
of rules with binding force, absent of a central authority such as the state. 13 Based on
this premise, he submits that the law – in its very essence – exists to ‘curb certain
natural propensities, to hem in and control human instincts and impose a non-
spontaneous, compulsory behaviour’.14 When so understood, law ensures a kind of
cooperation, premised on sacrifices and mutual concessions for a common end. The
necessary implication of this, is that individuals in a society are conditioned by the
law and the law operates as a tool of social control. Notably, however, because

7
John Griffiths, ‘What is sociology of law? (On law, rules, social control and sociology)’ (2017) 49(2)
Journal of Legal Pluralism and Unofficial Law 93, 97.
8
Eugene Litwak, ‘Three Ways in Which Law Acts as a means of Social Control: Punishment,
Therapy, and Education: Divorce Law a Case in Point’ (1956) 34(3) Social Forces 217, 219.
9
ibid.
10
Ibid.
11
Bronislaw Malinosky, Crime and Custom in Savage Society (London: Routledge and Keagan Paul,
1926)
12
Ibid at 6.
13
Malinowsky (n 11) 6.
14
Malinowsky (n 11) 19.

3
Malinowsky refers to mechanisms of control ‘in the widest sense’, 15 his conception of
law has been faulted for being too broad.16

Legal Pluralism and Griffiths’ Conception of Law as Social Control

Legal pluralism is a school of thought which seeks to reconceptualise the law/society

relation.17 The crux of legal pluralism is that, within the same social order, 18 two or
more legal systems may exist.19 Furthermore, that all enforceable norms should be
referred to as “law,” without a distinction between those enforced by the state and
those enforced by non-state agents. 20 John Griffiths, who is widely regarded as a
leader in legal pluralism, sought to develop a unique conception of law to better
understand its interrelationship with social life. To this end, Griffiths critiques the
dominant understanding of the law, which he terms ‘legal centralism’. He suggests
that legal centralism – which views law through the lens of state law – is limited and
ignores other systems of law that manifest in social interactions. 21 Moreover, he
argues that legal centralism prioritises and reflects the ‘moral and political claims of
the nation state’, thus rendering it obfuscatory and unsuitable. 22 In furtherance of the
legal pluralism agenda, therefore, Griffiths’ objective is deconstructive: to dismantle
the firmly entrenched notion that law is a ‘single, unified and exclusive hierarchical
normative ordering’23 which derives power from the state. By this reasoning, Griffiths
suggests that the concept of law transcends state law; that not all law is state law.
Griffiths insists that social reality lends proof to the existence of multiple intersecting
legal orders.24 This informs the context of his understanding of law as social control.

15
Tamanaha (n 1) 200.
16
Chris Fuller, ‘Legal anthropology, legal pluralism and legal thought’ (1994) 10(3) Anthropology
Today 9.
17
Sally Engle Merry, ‘Legal Pluralism’ (1988) 22(5) Law & Society Review 869.
18
Franz von Benda-Beckmann and Keebet von Benda-Beckmann, ‘The Dynamics of Change and
Continuity in Plural Legal Orders’ (2006) 38(53) The Journal of Legal Pluralism & Unofficial Law 1.
19
Anne Griffiths, ‘Legal Pluralism’ in Reza Banakar and Max Travers (eds) An Introduction to Law and
Social Theory (Hart Publishing, 2002) 289.
20
Sally Falk Moore, ‘Legal Pluralism as Omnium Gatherum (2014) 10(1) FIU Law Review 5.
21
Keebet von Benda-Beckmann and Bertram Turner, ‘Legal pluralism, social theory, and the state’
(2018) 50(3) The Journal of Legal Pluralism and Unofficial Law 255, 262.
22
John Griffiths, ‘What is Legal Pluralism’ (1986) 24 Journal of Legal Pluralism & Unofficial Law 1
23
Ibid at 4.
24
Simon Roberts, ‘After Government? On Representing Law Without the State’ (2005) 68(1) Modern
Law Review 1, 12.

4
Griffiths considers social control to be the theoretical object of the sociology of law,
and thus, an important element in understanding what the term ‘law’ means. 25
Griffiths suggests that social control is ‘pluralistic’, and is exercised in multifarious
social groups which often overlap and compete with each other. 26 Drawing on the
Hobbesian theory of the state of nature, he defines social control as the enterprise of
“subjecting human conduct to the governance of rules.” 27 Thus, social control can be
conceived as the regulation of behaviour of members of a certain group. 28 By this
analysis, law as social control denotes the regulation of human conduct through
rules. It immediately becomes evident that the purport of Griffiths’ postulation, is that
any system of rules that regulates/controls human conduct could potentially be
referred to as law. Furthermore, Moore’s conception of the semi-autonomous social
field (SASF) becomes relevant as a locus for social control. Moore considered two
different case studies of the garment industry in New York and an African tribe in
Tanzania to examine how the SASF works. She noted the existence of binding
obligations in these social arrangements, such that law is mediated through SASFs.
According to Moore, social structure comprises many SASFs, characterised by the
‘capacity to generate rules and induce compliance with them’.29 Notably, Moore
refrains from referring to the SASF as law. Nevertheless, she considers them to be
the ‘process by which what ultimately become legal rules emerge’. 30 She notes that
the SAFs prescribe the “conditions under which actors follow legal rules” – thus
depicting an element of social control. 31 It is evident that Griffiths’ postulation is an
invitation to consider law within the legal pluralist concept. Hence, throughout the
rest of the paper, Griffiths’ conception of law as social control can be conveniently
categorised as legal pluralism.

It then becomes pertinent to consider whether Griffiths’ postulation of law as social

control, can be sustained. Arguably, law and other systems of ordering or social

25
Griffiths (n 7) at 105.
26
Griffiths (n 7) at 106.
27
John Griffiths, ‘The division of labor in social control’ in Donald Black (ed) Toward a General Theory
of Social Control (Academic Press, 1984) 37-70.
28
Ibid.
29
Sally Falk Moore, ‘Law and Social Change: The Semi-Autonomous Field as an Appropriate Subject
of Study’ (1973) 7 Law and Society Review 719, 722.
30
John Griffiths, ‘The Social Working of Legal Rules’ (2003) 35(48) The Journal of Legal Pluralism &
Unofficial Law 1.
31
Ibid.

5
control manifest in a similar manner, such that those systems of ordering/social
control would instinctively appear to be law. Galanter proposes a theory called the
“manifestations of law”, by which he suggests that diverse phenomena inform – and
consequently, fall within – everyday use of the term “law”. 32 He notes that these
phenomena might be seemingly related but do not necessarily amount to the same
thing.33 Although Galanter primarily considers legal phenomena – such as legal
rules, principles, values, and institutions – his theory can be modified to fit the
present context. Specifically, his idea that the law manifests in diverse, albeit
sometimes similar, ways – and that none of these manifestations is superior with
respect to the concept of law itself – is relevant. 34 Through this prism, it is possible to
argue that law could manifest as social control. One could also argue that state law
and other normative orders could also manifest in a similar manner, with the
common effect of social control.

Overall, the legal pluralist conception of law – borne out in Griffiths’ postulation – is
not entirely problematic. Indeed, it is conceivable that multiple (legal) orders can
exist within a social field, all of which, according to Griffiths’ formulation of social
control, regulate human conduct. For instance, in countries where customary and/or
Islamic law exist, these systems are recognised within the legal framework and, in
most cases, co-exist with the primary state law. This is the case in Nigeria, where the
legal framework recognises formal state law (‘received English law’) alongside
Sharia law (for practising Muslims who submit to its jurisdiction) and diverse
customary laws (applicable to personal matters such as marriage, title to land and
succession).35 It is plausible that these multiple legal orders regulate human conduct
in the sense of social control, within their spheres of influence. This arguably lends
proof to the fact that the legal pluralist concept can be sustained to some degree.

Moreover, the legal pluralist concept of law would seem to accord with social reality.
Indeed, the law is dynamic and does not exist in isolation. Even if one were to favour
32
Marc Galanter, ‘Notes on the Future of Social Research in Law’ in Lawrence Friedman and Stewart
Macaulay (eds.) Law and the Behavioral Sciences (New York: Bobbs Merrill, 1977) 18.
33
Ibid.
34
Ibid.
35
Anthony Diala, ‘A butterfly that thinks itself a bird: the identity of customary courts in Nigeria’ (2019)
51(3) The Journal of Legal Pluralism & Unofficial Law 1, 2; Anthony Diala, ‘Legal Pluralism and Social
Change: Insights from Matrimonial Property Rights in Nigeria’ in Christa Rautenbach (ed.) In the
shade of an African Baobab: Tom Bennett’s legacy (Juta Legal and Academic Publishers, 2019).

6
the conventional understanding of law as state law, the fact remains that law
operates within a wider context of society. 36 Thus, broad concepts of law such as
Griffiths’ postulation are emancipatory, in the sense that they highlight the social
realities in which law may operate, and present law beyond our conventional focus
on the nation state.37 Nevertheless, the broad concept of law espoused by legal
pluralists such as Griffiths, do not enjoy universal acceptance. The following section
considers the critiques levelled against the legal pluralist understanding of law.

2. Critiques of Legal Pluralism and Griffiths’ Conception of Law

Griffiths’ conception of law – and by extension, the legal pluralist stance – is

undoubtedly expansive. It is therefore unsurprising that it has been subject to severe
criticism by other scholars. Simon Roberts, for instance, argues the need to exercise
caution in representing negotiated orders and wider forms of social control as law. 38
Indeed, it can be problematic to input the term law to systems of social control such
as normative orders. Some reasons why this expansionary approach is problematic
are considered below.

For a start, ‘law’ should be understood as a distinctive system, with its unique
identity. While every social field comprises multiple normative systems or orders, 39
attaching the term ‘law’ to these normative orders is contestable. Roberts highlights
the identity conundrum, whereby law is ascribed to normative orders ‘from the
outside’, but without any ‘resonance for the actors concerned’.40 More importantly,
however, the distinctiveness of law stems from its historical associations, which have
in turn informed our understanding of what the concept means. Roberts notes that
early on, law was linked to Judea-Christian religious tradition; however, as the
modern state and government emerged, the ideological focus shifted to considering
law as a function of the state. 41 Roberts also suggests that law has a strong historical
link to ‘government’ or an attempt at governing, and that it stems from processes of

36
Rodolfo Sacco, ‘Mute Law’ (1995) 43 American Journal of Comparative Law 455, 459.
37
Marc Galanter, ‘Justice in Many Rooms: Courts, Private Ordering and Indigenous Law’ (1981) 19
Journal of Legal Pluralism 1.
38
Roberts (n 24) 1.
39
Moore (n 29).
40
Roberts (n 24) 12.
41
Roberts (n 24) 13.

7
centralisation that led to the ‘proliferation of the nation state’. 42 To this extent, law is
inherently centrist and should be so understood. Cumulatively, these historical
associations lend credence to the law’s distinct character as a ‘discreet bounded
region’, which does not readily yield itself to concepts such as legal pluralism that
seek to expand its scope.43 As law is distinctive and possesses its own identity,
expanding the remit of what can be referred to as ‘law’ could potentially erode its
distinctiveness. This finds support with Galligan, who views that by referring to law in
broad terms (such as social control), there is the risk of losing sight of law as a
unique formation with its distinct features.44

Tamanaha suggests that the legal pluralists’ conclusion that “all forms of social
control are law” is inherently flawed.45 Merry supports this view and argues that
referring to “all forms of ordering that are not state law by the name law confounds
the analysis”.46 This is because the legal pluralism literature is yet to create a clear
boundary between normative orders that may be referred to as law, and those that
cannot.47 Thus, it fails to answer an important methodological question. If the
concept of law is expanded to include normative orders or systems of social control,
how does one decide/determine which of these normative orders can be rightly
regarded as law? As the legal pluralist jurisprudence currently fails to answer this
question satisfactorily, a real risk arises that in expanding the concept of law, the
boundaries between law and other systems of social ordering/social order would
become too blurred.

Dupret further argues that in defining what counts as law, legal pluralists confuse
“descriptive and non-descriptive concepts.”48 He suggests that law is a non-
descriptive concept, which was never intended to be used by sociologists for
describing social reality.49 Thus, by equating law with other social orderings or
systems of social control, legal pluralists create an ambiguity, by using a word with a

42
Roberts (n 24) 18.
43
Simon Roberts, ‘Against Legal Pluralism: Some Reflections on the Contemporary Enlargement of
the Legal Domain’ (1998) 42 The Journal of Legal Pluralism & Unofficial Law 95.
44
Dennis Galligan, Law in Modern Society (Oxford University Press, 2006) 4-5.
45
Tamanaha (n 1) 193.
46
Merry (n 17) 878.
47
Merry (n 17) 879.
48
Dupret (n 3) 11.
49
Dupret (n 3) 11.

8
constricted meaning to perform an analysis that is at variance with this meaning. 50
This critique arguably takes an extreme standpoint. Even if we are to accept that the
term ‘law’ has a constricted meaning, uprooting it from sociological enquiry does a
disservice to our understanding of the concept. Specifically, it divorces the law
completely from its indispensable social reality, and this arguably limits our
understanding of the concept.

Moreover, negotiated orders or systems of social control function are premised on

distinct rationalities. They function on a different orientation from law. Taking
Malinowsky’s case study of the Trobian Islanders, it becomes evident that such
social orders are distinct from law. For instance, agreement and mutual concessions
form the basis of decision-making in such negotiated orders, and this can be
contrasted with the imposed order of a third party which is emblematic of state law. 51
Thus, wide conceptions that seek to equate the law with systems of social control,
have the potential effect of effacing the unique values of negotiated order.

3. Why Does It Matter? Highlighting the Importance of the Concept of Law

Scholars such as Twinning have suggested that it is best to ‘avoid becoming

embroiled in general efforts’ at defining the term ‘law’ altogether. 52 He argues the
need to refrain from extensive debate on the question posed in the present context
about the concept of law. On the one hand, Twinning’s caution illustrates the fact
that defining the term ‘law’ is prone to notorious difficulty. On the other hand,
however, by conveniently sidestepping the fundamental question, Roberts argues
that Twinning seeks to ‘have his cake and eat it’, whilst leaving the fundamental
question unanswered.53

This essay considers that the ‘term’ law – and what counts as law – is important
because it informs our understanding, appreciation, appraisal, and study of the field.
Thus, an important question that arises is how we understand (or should understand)

50
Dupret (n 3) 11.
51
Jurgen Habermas, Theorie des kommunikativen Handelns (1981); The Theory of Communicative
Action, trans. Thomas McCarthy (Cambridge: Polity Press, 1987)
52
William Twinning, Karl Llewellyn and the Realist Movement (London: Weidenfeld & Nicolson, 1973)
178.
53
Roberts (n 24) 22.

9
and talk about the concept. Arguably, the way law is understood and discussed
should depend on the rationale for enquiry and/or the specific questions sought to be
answered. This aligns with Benda-Beckmann’s observation that research is
undertaken based on what the author in question is interested in.54

Tamanaha has suggested that, in the coming years, the discourse on how far the
concept of law should be expanded, is better reframed as a question of “normative
pluralism”55 or pluralism in social control. Benda-Beckmann argues that legal
pluralism is best situated in historical processes and empirical situation, such that the
unenviable task of delving into abstract concepts is avoided. 56 Indeed Griffiths, a
major proponent of legal pluralism agrees with this view. He suggests that in the
present discourse, the term ‘law’ could be “abandoned altogether for the purpose of
theory formation in sociology of law.”57 This paper aligns with this position, as it
would allow for a better-grounded theoretical formulation.

Conclusion

This essay served as a critical examination of the concept of law. It noted that in
defining the remit of law, there is a clear friction between the conventional
understanding of law as state law backed by central authority, and the notion that
law can exist absent of the state. The essay considered Griffiths’ conception of law
as part of the latter strand of the debate, highlighting scholarly contributions both
prior and sequel to his postulation. Griffiths sought to dismantle the conventional
notion of law as state law. To this extent, his postulation is an invitation to consider
the term ‘law’ in a legal pluralist sense. The essay considered that the merit of
Griffiths’ view – and by extension, legal pluralism – is the provision of a broader
understanding of law within its social reality. Nevertheless, the essay also examined
counter arguments to Griffiths’ position, highlighting the validity of these critiques.
Specifically, it was argued that law is distinct from other systems of social control or
normative orders. Accordingly, broad concepts of law such as Griffiths’ risk eroding
the distinctive nature of law. In addition, imputing the status of ‘law’ on normative
54
Franz Von Benda-Beckmann, ‘Who’s Afraid of Legal Pluralism’ (2002) 47 Journal of Legal Pluralism
& Unofficial Law 37.
55
Fernanda Pirie, The Anthropology of Law (Oxford University Press, 2013) 20 (quoting Tamanaha)
56
Benda-Beckmann (n 55)
57
John Griffiths, ‘The Idea of Sociology of Law and its Relation to Law and to Sociology’ in Michael
Freeman, Law and Sociology (Oxford; New York: Oxford University Press, 2006) 63-64.

10
orders may further compound the definitional challenge of law, as it becomes difficult
to ascertain which normative orders specifically can be properly termed ‘law’.
Moreover, by referring to systems of social control as law, a real risk arises that law
becomes too subjective, and we lose sight of what it really means. Furthermore,
extending the concept of law to include negotiated orders could potentially efface the
rationality behind the said negotiated orders. In view of these challenges, this essay
aligns with the position that referring to law as social control is undesirable and may
prove to be a slippery slope.

11