The Pluralist challenge: how to identify what is law?

Abstract

This paper discusses the issue that different theories of legal pluralism have historically faced to define law and distinguish it from other normative phenomena. First part shows how pluralist studies have impacted legal theory and presents some of the initial attempts they have made to answer the question “what is law?”. Second part addresses how the literature that renewed the pluralist tradition with an emphasis on the global/transnational scope also encounters difficulties when faced with the same question, having in some cases avoided answering by adopting more normative positions. However, the apparent neglect of the issue of the law/non-law divide risks inflating the term and hindering possible diagnoses. As a possible way out of this dilemma, the third part presents the conventionalist approach proposed by Brian Tamanaha, which appears to be a good tool for escaping some of the problems of previous pluralist views. Finally, the article suggests that there is room for improvement in relation to Tamanaha's proposal.