Anthropologists have also observed that some societies function without government, but still have social order and rights-like institutions. In modern nations, there may be different societies, so it becomes appropriate to speak of legal pluralism. The classification of legal systems then depends on the characteristics of different societies or their subgroups. Leopold Pospís̆il (1974, pp. 106-26), for example, described this situation as a structured mosaic of subgroups belonging to certain identifiable types with different affiliations. Each sub-group owes its existence to a legal system that regulates the conduct of its members. These legal systems then form a hierarchy that reflects the degree of inclusiveness of the corresponding subgroups and can be classified by legal level such as family, ancestry, community, state or nation. People are simultaneously members of several subgroups of different inclusiveness, which can lead to conflicting legal loyalties. The recognition of the importance of non-state legal forms has led socio-legal theorists to rethink their thinking on the relationship between law and society.
The suggestion that the law of the State and its institutions for the administration of justice are merely a form of social control has been an essential feature of legal pluralism since the foundations of legal theory. However, the pluralistic legal tradition has focused on the character, source and hierarchical place of non-State normative orders in relation to State law. Until the mid-1970s, much of their argument explored the relationship between Indigenous tribal customs and European colonial law (Pospisil, 1971). This tradition regarded indigenous orders as autonomous, independent, but subordinate to colonial law. By the mid-1980s, the focus had shifted to non-colonial societies, but continued to be concerned with the hierarchical balance of power between dominant and subordinate legal forms. Therefore, many critical theorists view “informal judicial institutions” as a subordinate normative order and examine how they fulfill the ideological function of blurring state power so that it appears as a benign part of the social fabric. They have shown that this ideological subordination is achieved through the co-optation and exploitation of a human desire for informal and localized communal justice, and that the episodic tendency towards “informal” and decentralized state control has a dual function of legitimizing and clearly expanding state control (Cohen 1985). However, this criticism seems to apply more to the growth of state-sponsored dispute resolution institutions, community policing, and restorative justice than to explaining the state`s interrelationship with other established private legal systems that have been largely ignored. In the late 1980s, attention turned to the contribution of the social relations of these non-state legal systems to the constitution of state law. Habitual and religious institutions and practices that colonial powers deemed incompatible with colonial rule, such as primary loyalty to chiefs, sought to destroy or transform them. Their policy towards the other components of these legal systems was to tolerate and even promote their existence as an alternative to those of existing law.
Consequently, in the social sphere of each colony, both the legal system of the State and one or more systems of customary or religious law were observed. In this form of legal pluralism, there was no uniform hierarchy of norms. Individuals differed depending on whether they gave general primacy over non-state law to respect for state law or whether they gave priority to everyone else on different occasions. Early descriptions of plural legal systems examined each individually, but more recent work focuses on how plural systems shape each other. Thus, one legal system may offer the right to challenge the decisions of another, or a litigant may choose between several competing systems. Plural legal systems generally differ in their power, so the more powerful has the ability to surpass the actions of the less powerful. In colonial situations, colonial authority often established one legal system for the subject and another for the colonial authorities (Moore 1986, Merry 2000). Local social groups such as schools, communities, businesses, and even gangs have their own right-like systems of order, but they operate within the framework of nation-state law. The term “interlegality” has been used to describe the interactions between several legal systems.
The modern African state, with its state and legal institutions, is a product of colonization. In most parts of Africa, there was relatively little immigration from colonizing countries, and indigenous inhabitants everywhere remained in the majority. Nevertheless, the colonial powers established systems of government similar to those of the metropolises, except that they did not provide for public participation in government. English common law was imported into the British colonies. In their colonies, codes largely identical to those of France and Portugal were issued. (Allott 1960, 1970; see also: Law: Imposition, Reception, and Colonial.) Some legal systems openly combine several legal interests from different origins. For example, some ancient and modern societies had a system of “personal law” in which the emergence of certain rules depended on the religious or tribal identity of the parties (see Legal Pluralism; Volks-, Indigen- und Customsrecht). In most modern societies, the law is uniform, but nevertheless consists of several regulatory systems that coexist and are closely linked. In addition to the primary rules, the Act contains various secondary rules on the recognition and enforcement of its own rules (Hart, 1961) and on the recognition and strengthening of regulatory activity in other institutions.