¹ See generally Tamanaha, Brian, “A Non-essentialist Version of Legal Pluralism,” Journal of Law and Society 27 (2002), 5Google Scholar, citing Adamson Hobel's description of the myriad attempts by social scientists and legal theorists to define what law is as “the quest for the Holy Grail”: Hobel, Adamson, The Law of Primitive Man (Cambridge, MA: Atheneum, 1954), 18Google Scholar.

² Tamanaha, , “Non-essentialist Version,” 6Google Scholar.

³ Saltman, Richard B. and Ferroussier-Davis, Odile, “The Concept of Stewardship in Health Policy,” Bulletin of the World Health Organization 78 (2000), 732Google ScholarPubMed.

⁴ Seidman, Ann and Seidman, Robert B., State and Law in the Development Process: Problem-Solving and Institutional Change in the Third World (New York: St. Martin's Press, 1994), 38CrossRefGoogle Scholar.

⁵ de Bruyn, Theodore, “Taking Stock: Policy Issues Associated with Complementary and Alternative Health Care,” in Perspectives on Alternative and Complementary Health Care: A Collection of Papers Prepared for Health Canada, vol. 2 (Ottawa: Health Canada, 2001), 24Google Scholar.

⁶ “NIGERIA: Basic services a challenge to Nigeria's new leaders,” United Nations Office for the Coordination of Humanitarian Affairs (April 24, 2007), http://www.irinnews.org/Report.aspx?ReportId=71787. The same source states that only about 34,923 doctors serve the country's population of 140 million. See also Abiose Adelaja, “Nigeria Boosts Research into Traditional Medicine,” Science & Development Network (December 6, 2006), http://www.scidev.net/en/news/nigeriaboosts-research-into-traditional-medicine.html.

⁷ “Crisis in Human Resources for Health in the African Region,” African Health Monitor 7, 1 (January–June 2007)Google Scholar.

⁸ Awases, Magda, “Migration of Skilled Health Professionals in the African Region: An Overview,” African Health Monitor 7, 1 (2007)Google Scholar.

⁹ Africa Recovery 13, 1 (June 1999), 12Google Scholar.

¹⁰ Awases, “Migration of Skilled Health Professionals.”

¹¹ See generally “Crisis in Human Resources.” The WHO regional scholars who contributed to this publication make no mention of alternative healers in the broad range of solutions they proffer.

¹² Schryer-Roy, Anne-Marie and Campbell, Sandy, eds., Towards an Ideal African Health System? Contributions to the Vision: A Selection of Essays (Fitzroy North, Australia: Research Matters, 2006), http://www.idrc.ca/uploads/user-S/11720008761Towards_an_Ideal_African_Health_System.pdf, 19Google Scholar.

¹³ Ibid., citing Samuel Yonkeu, “A quoi un système de santé africain financièrement accessible et durable devraitil ressembler au XXIe siècle?” (Research Matters Working Paper, 2006), trans. Polycarp Ambe-Niba (emphasis added).

¹⁴ Akosah-Sarpong, Kofi, “Room for Traditional Medicine in Ghana?” Science & Development Network (May 16, 2007), http://www.scidev.net/en/health/traditional-medicine/opinions/room-for-traditional-medicine-in-ghana.html#Google Scholar.

¹⁵ Ibid.

¹⁶ ibid.

¹⁷ See Shaw, Mary, “Complementary and Alternative Medicine and the Medical Expense Tax Credit: A Case for Legislative Reform,” Health Law Journal 14 (2006), 45–67Google ScholarPubMed; Blanc, Marie Thérèse, “Health and Multiculturalism: An Inquiry into the Juridical Limits of Medical Pluralism in Quebec,” Ottawa Law Review 29 (1998), 335–67Google Scholar; Haigh, Richard A., “Reconstructing Paradise: Canada's Health Care System, Alternative Medicine and the Charter of Rights,” Health Law Journal 7 (1999), 141–91Google ScholarPubMed. Interestingly, with the inclusion of chiropractic and massage therapy in the list of insurance-covered services in some provinces, Canada will in the near future provide a rich field of study for medical integration, with all the proposals for a change in medical-legal standards that have come with such an initiative in the United States. See, e.g., Charell v. Gonzales, 660 N.Y.S.2d 665 (Sup. Ct., 1997), aff'd [1998] NY-QL 3146 (App. Div.) (QL) [Charell]. In this case, the Court found that the physician had failed to obtain adequate informed consent, based on his failure to disclose existing unorthodox alternative therapies. See also Moore v. Baker, U.S. Dist. LEXIS 14712 (1991); Schneider v. Revici, 817 F.2d 987(2d Cir. 1987). See also Cohen, M.H., Beyond Complementary Medicine: Legal and Ethical Perspectives on Health Care and Human Evolution (Ann Arbor: University of Michigan Press, 2000), 37CrossRefGoogle Scholar, arguing for a reinterpretation of the law of negligence to accommodate alternative medicine.

¹⁸ Many developing countries, including Nigeria, have dual systems of health care, and this provides a classical case for the subject of analysis here. Specific examples are drawn from Nigeria, a country currently going through what may be termed an experimental period in its health system with the recent introduction of a National Health Insurance Scheme. Nigeria operates an inclusive system of health care in which the Western orthodox system is the country's official health-care system and indigenous and alternative health-care systems exist privately.

¹⁹ See generally, Task Force on Child Health and Maternal Health, Who's Got the Power? Transforming Health Systems for Women and Children (UN Millennium Project, 2005), 96Google Scholar. The concept of an imperfect (health-care) market derives from the inability of consumers to assess the quality and manufacturing process of health products. The inability of the consumer to define the goods for sale because the exercise of their judgment is contingent on other factors such as test results, quality assessment, and the professional judgment sometimes required before purchase is the primary factor that characterizes the health care market as imperfect. Because of the imperfect nature of this market, it is arguable that the state's role in monitoring the quality of health products and services is open to little debate. However, the standards employed in this supervisory process are open to much controversy. See generally Light, D.W., “Health Care Systems and Their Financing,” in The Oxford Medical Companion, ed. Walton, J., Barondess, J.A., and Lock, S. (Oxford: Oxford University Press, 1994)Google Scholar; Kopelman, Loretta, “The Role of Science in Assessing Conventional, Complementary and Alternative Medicines,” in Complementary and Alternative Medicine: Accommodating Pluralism, ed. Callahan, Daniel (Washington, DC: Georgetown University Press, 2002), 46Google Scholar.

²⁰ Baronov, David, The African Transformation of Western Medicine and the Dynamics of Global Cultural Exchange (Philadelphia: Temple University Press, 2008), 20Google Scholar.

²¹ Kelner, Merrijoy et al. , “The Role of the State in the Social Inclusion of Complementary and Alternative Medical Occupations,” Complementary Therapies in Medicine 12 (2004), 79CrossRefGoogle Scholar.

²² Singer, Philip, Traditional Healing: New Science or New Colonialism? (Essays in Critique of Medical Anthropology) (New York: Conch Magazine, 1977), 253Google Scholar.

²³ For example, in Nigeria's new National Health Bill, presently before the National Assembly, “traditional medicine” is mentioned only a couple of times.

²⁴ See generally Santos, Boaventura de Sousa, Toward a New Legal Common Sense: Law, Globalization, and Emancipation, 2nd ed. (London: Butterworths, 2002), 94Google Scholar, arguing that “under current conditions the centrality of the state lies to a significant extent in the way the state organizes its own decentring.” A comprehensive examination of this issue necessarily takes the researcher beyond the confines of legal pluralism, based on the inter-complementary nature of some schools of legal theory.

²⁵ Kleinhans, Martha-Marie and Macdonald, Roderick A., “What Is a Critical Legal Pluralism?” Canadian Journal of Law and Society 12 (1997), 34CrossRefGoogle Scholar.

²⁶ Ibid., 29.

²⁷ Santos, , Toward a New Legal Common Sense, 5Google Scholar.

²⁸ Ibid., 7. See generally Iyioha, Irehobhude O., “The Deregulation of Complementary Medicine in Science-Based Regulation: Merging Myths, Science and Law” (LLM diss., University of Toronto, 2007)Google Scholar; see also. Iyioha, Irehobhude O., “Informed Choice in Alternative Medicine: Expanding the Doctrine Beyond Conventional Alternative Therapies,” ICFAl Journal of Healthcare Law 1 (2007)Google Scholar.

²⁹ Cant, Sarah and Sharma, Ursula, A New Medical Pluralism? Alternative Medicine, Doctors, Patients and the State (London: UCL Press, 1999), 12Google Scholar.

³⁰ Task Force on Child Health and Maternal Health, Who's Got the Power?, 98Google Scholar.

³¹ Ibid.

³² Ibid.

³³ Ibid., 344.

³⁴ Santos, , Toward a New Legal Common Sense, 6Google Scholar.

³⁵ Burford, Gemma, Bodeker, Gerard, and Ong, Chi-Keong, “Financing Traditional, Complementary and Alternative Health Care Services and Research,” in Traditional, Complementary and Alternative Medicine: Policy and Public Health Perspectives, ed. Bodeker, Gerard and Burford, Gemma (Oxford: Oxford University Press, 2007), 46Google Scholar.

³⁶ See Willis, Evan and White, Kevin, “Evidence-Based Medicine and CAM” in The Mainstreaming of Complementary and Alternative Medicine: Studies in Social Context, ed. Tovey, Philip, Easthope, Gary, and Adams, Jon (London: Routledge, 2004), 58Google Scholar.

³⁷ Burris, Scott, “Governance, Microgovemance and Health,” Temple Law Review 77 (2004), 337Google Scholar.

³⁸ Ibid.

³⁹ Ibid. at 336.

⁴⁰ Ibid.

⁴¹ See ibid., 339.

⁴² See Task Force on Child Health and Maternal Health, Who's Got the Power?, 96Google Scholar.

⁴³ See generally Kleinhans and Macdonald, “Critical Legal Pluralism.”

⁴⁴ Ibid.

⁴⁵ Santos, , Toward a New Legal Common Sense, 94Google Scholar.

⁴⁶ Kleinhans, and Macdonald, , “Critical Legal Pluralism,” 30Google Scholar.

⁴⁷ Santos, , Toward a New Legal Common Sense, 89Google Scholar.

⁴⁸ Ibid., 86.

⁴⁹ According to Santos, writes, rhetoric is “a communication form and a decision-making strategy based on persuasion or conviction through the mobilization of the argumentative potential of accepted verbal and non-verbal sequences and artifacts.” Ibid., 86.

⁵⁰ Ibid.: In Santos's words, bureaucracy is “a communication form and a decision-making strategy based on authoritative impositions through the mobilization of the demonstrative potential of regularized procedures and normative standards.”

⁵¹ Ibid.

⁵² Ibid.

⁵³ Ibid., 86–87.

⁵⁴ Santos' hypothesis is that “the higher the level of bureaucratic institutionalization of juridical production, the smaller the rhetorical space of the legal discourse, and vice versa; and the more powerful the instruments of violence in the service of juridical production, the smaller the rhetorical space of the legal discourse, and vice versa.” Ibid., 87.

⁵⁵ Santos' “rhetoric” and “diatopical hermeneutics” enunciate the importance of cultural discourse between opposing knowledge systems based on the incompleteness of cultures. Standing astride two cultures creates a bridge across diversities. This, he contends, can be achieved through convivial discourse. See generally Santos, Boaventura de Sousa, “Towards a Multicultural Human Rights,” in Moral Imperialism: A Critical Anthology, ed. Hemandez-Truyol, Berta (New York: New York University Press, 2002)Google Scholar. See also Santos, , Toward a New Legal Common Sense, 474Google Scholar.

⁵⁶ For example, Nigeria's National Health Insurance Act, one of the most important laws regulating health care in Nigeria, does not extend insurance coverage to Indigenous health care systems. This is one of several state medical laws that make specific provisions for the delivery of orthodox care.

⁵⁷ Cohen, M.H., Future Medicine: Ethical Dilemmas, Regulatory Challenges, and Therapeutic Pathways to Health Care and Healing in Human Transformation (Ann Arbor: University of Michigan Press, 2003)Google Scholar. See also Cohen, M.H. et al. , “Credentialing Complementary and Alternative Medical Providers,” Annals of Internal Medicine 137 (2002)Google Scholar.

⁵⁸ Laws of the Federation of Nigeria, c. 344 (1990 ) [PDA].

⁵⁹ Allan Ogunkeye, “An Overview of the Law of Patents in Nigeria,” http://allanogunkeye.com/02%20AN%20OVERVIEW%20OF%20THE%20LAW.pdf, 3–4. See also PDA at s. 4(4).

⁶⁰ Ogunkeye, , “Overview,” 4Google Scholar.

⁶¹ Caroline T. Owoseni, “New Developments and Challenges in the Protection of Intellectual Property Rights (IPRS): A Nigerian Perspective” (International Conference on Intellectual Property, the Internet, Electronic Commerce and Traditional Knowledge, Sofia, Bulgaria, May 29–31, 2001), 3.

⁶² Santos, , Toward a New Legal Common Sense, 86Google Scholar.

⁶³ See, e.g., Charell (for details see note 17 above).

⁶⁴ See generally McLaughlin v. Connecticut General Life Insurance Company, 565 F.Supp. 434 (N.D. Cal. 1983), which suggests a departure both from a reliance on the biomedical model for interpretation of what is medically necessary (and, hence, insurable) and from insurer's dependence on FDA approval to legitimize alternative treatments.

⁶⁵ Cohen, Michael H., Complementary and Alternative Medicine: Legal Boundaries and Regulatory Perspectives (London: Johns Hopkins University Press, 1998), 96Google Scholar.

⁶⁶ (1998) 1 LRCNCC 66.

⁶⁷ Ibid. at 86–87.

⁶⁸ Any such rhetorical enterprise resonates with Lon Fuller's interpretive agenda against legal positivism. See generally Fuller, Lon L., “Human Interaction and the Law,” American Journal of Jurisprudence 14 (1969), 1CrossRefGoogle Scholar; Fuller, Lon L., “Positivism and Fidelity to Law: A Reply to Professor Hart,” Harvard Law Review 71 (1958)CrossRefGoogle Scholar; Fuller, Lon. L., The Morality of Law (New Haven, CT: Yale University Press, 1967)Google Scholar.

⁶⁹ Santos, , Toward a New Legal Common Sense, 16Google Scholar.

⁷⁰ Ibid., 94.

⁷¹ Ibid.

⁷² Ibid., 458–59.

⁷³ Notably, an essentialist view of law defines law in terms of a supposed set of categories or features that are considered to be its defining characteristics. Such a view also defines law in terms of the specific uses to which it can be put, based on the identified features or categories.

⁷⁴ Santos, , Toward a New Legal Common Sense, 467Google Scholar. Other scholars have pointed out that Santos' thesis, in contexts outside that discussed above, is essentialist and falls into the category of functionally based definitions of law. See e.g., Tamanaha, “Towards a Non-essentialist Version of Legal Pluralism.”

⁷⁵ Indeed, some scholars have asserted forcefully that “law has no essence.” See Tamanaha, ibid., 313.

⁷⁶ Kleinhans and Macdonald, “Critical Legal Pluralism.” The emphasis on “critical” is the authors'.

⁷⁷ Ibid., 29 (emphasis added).

⁷⁸ Ibid., 34.

⁷⁹ Ibid., 4–35.

⁸⁰ Ibid., 35 (emphasis added).

⁸¹ Ibid., 38 (emphasis added).

⁸² Ibid.

⁸³ Ibid.

⁸⁴ Ibid., 36.

⁸⁵ Ibid., 39.

⁸⁶ See generally Fuller, “Human Interaction”; Fuller, “Positivism and Fidelity to Law”; Fuller, Morality of Law.

⁸⁷ See Baronov, , African Transformation, 58Google Scholar.

⁸⁸ Burris, , “Governance, Microgovernance,” 345Google Scholar. See primarily Sell, Susan K., Private Power, Public Law: The Globalization of Intellectual Property Rights (Cambridge: Cambridge University Press, 2003)CrossRefGoogle Scholar.

⁸⁹ Burris, “Governance, Microgovernance.”

⁹⁰ This point will be used in emphasizing the downsides to a micro-governance or decentralization theory in which health consumers are left at the mercy of powerful, private actors.

⁹¹ Ibid., 346 (emphasis added).

⁹² Ibid., (emphasis added).

⁹³ See Santos, , Toward a New Legal Common Sense, 4Google Scholar.

⁹⁴ World Bank, World Development Report 1993: Investing in Health (New York: World Bank/Oxford University Press, 1993)Google Scholar, cited in Task Force on Child Health and Maternal Health, Who's Got the Power?, 39Google Scholar.

⁹⁵ Task Force on Child Health and Maternal Health, Who's Got the Power?, 39Google Scholar.

⁹⁶ See ibid.

⁹⁷ Ibid.

⁹⁸ Ibid. The views of the Millennium Development Project described here are based on those of Bloom, Gerry and Standing, Hilary, “Pluralism and Marketization in the Health Sector: Meeting Health Needs in the Contexts of Social Change in Low- and Middle Income Countries,” IDS Working Paper No. 136 (Brighton, UK: Institute for Development Studies, University of Sussex, 2001)Google Scholar.

⁹⁹ Task Force on Child Health and Maternal Health, Who's Got the Power?, 40Google Scholar.

¹⁰⁰ See ibid., 40.

¹⁰¹ Ibid. See also Mackintosh, Maureen and Tibandebage, Paula, “Inequality and Redistribution in Healthcare: Analytical Issues for Developmental Social Policy,” in Social Policy in a Development Context, ed. Mkandawire, T. (Basingstoke, UK: Palgrave, 2004)Google Scholar; Adedeji, Adebayo and Otite, Onigu, Nigeria: Renewal from the Roots? The Struggle for Democratic Development (Atlantic Highlands, NJ: Zed Books, 1997), 199Google Scholar (stating that “unregulated and uncontrolled, the forces of marketization … are the forces of inequity and marginalization”).

¹⁰² See ibid., 95.

¹⁰³ This has been achieved in the US state of Washington. In a study conducted in 2002, the impact on alternative health-care expenditure of a 1996 Washington state law mandating that all health plans cover “every category of provider” was evaluated against the total cost of out-of-pocket health expenditures previously recorded. The results showed an impressively lowered cost of care. See Lafferty, W.E. et al. , “Insurance Coverage and Subsequent Utilization of Complementary and Alternative Medicine Providers,” American Journal of Managed Care 12 (2006), 397–404Google ScholarPubMed.

¹⁰⁴ This understanding is perceived to be achieved through the acceptance of the different standards (legal and otherwise) operating within indigenous health care, since the acceptance of the latter into the National Health Service is presently premised on its amenability to scientific standards.

¹⁰⁵ Burris, , “Governance, Microgovernance,” 346Google Scholar, notes the importance of access to decision-making bodies when he states that democratic decision making about health may be defined in terms of access to decision-making nodes and a meaningful capacity to influence them. He also explains that, in collaboration with other scholars, he is putting questions of this nature to use in research “whose goal is to identify and support community efforts to change law enforcement practices that increase the spread of HIV in three cities in. Eastern Europe and the former Soviet Union”; the research is “an elaboration of the World Health Organization's Rapid Assessment and Response model” (ibid., 346, n. 39; emphasis added).

¹⁰⁶ Santos, , Toward a New Legal Common Sense, 94Google Scholar.

¹⁰⁷ Ibid., (emphasis mine).

¹⁰⁸ This process may begin by contesting the TRIPS agreement or the Nigerian Patent Act, which has reified the philosophies of the Western intellectual property regime, or from within Nigeria's medical laws, which patently ignore, through lack of representation, the importance of the cultural narratives underlying indigenous health care systems and the role of governance in health-care outputs.

¹⁰⁹ Otto, Dianne, “Subalternity and International Law: The Problems of Global Community and the Incommensurability of Difference,” in Laws of the Postcolonial, ed. Darian-Smith, Eve and Fitzpatrick, Peter (Ann Arbor: University of Michigan Press, 1999), 173Google Scholar.

¹¹⁰ Ibid.

¹¹¹ Ibid.

¹¹² See Santos, , Toward a New Legal Common Sense, 470Google Scholar.

¹¹³ Tataryn, Douglas J. and Verhoef, Marja J., “Combining Conventional, Complementary and Alternative Health Care: A Vision of Integration,” in Perspectives on Alternative and Complementary Health Care: A Collection of Papers Prepared for Health Canada, vol. 7 (Ottawa: Health Canada, 2001), 105Google Scholar.

¹¹⁴ Ibid.

¹¹⁵ See generally s. 23(1)(b) of the Nigerian Health Bill, on file with author. See Cohen, Michael H., Beyond Complementary Medicine: Legal and Ethical Perspectives on Health Care and Human Evolution (Ann Arbor: University of Michigan Press, 2003), 37–41Google Scholar.

¹¹⁶ See Tataryn, and Verhoef, , “Combining Conventional, Complementary and Alternative Health Care,” 103Google Scholar

¹¹⁷ Ibid.

¹¹⁸ Ibid.

¹¹⁹ Ibid., 104.

¹²⁰ Ibid.

¹²¹ See generally Irehobhude O. Iyioha, “Deregulation of Complementary Medicine.”