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«9-23-2007 Global Legal Pluralism Paul Schiff Berman University of Connecticut, paul.berman Follow this and additional works at: ...»

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University of Connecticut School of Law Articles

University of Connecticut School of Law

and Working Papers

9-23-2007

Global Legal Pluralism

Paul Schiff Berman

University of Connecticut, paul.berman@law.uconn.edu

Follow this and additional works at: http://lsr.nellco.org/uconn_wps

Recommended Citation

Berman, Paul Schiff, "Global Legal Pluralism" (2007). University of Connecticut School of Law Articles and Working Papers. Paper 71.

http://lsr.nellco.org/uconn_wps/71 This Article is brought to you for free and open access by the University of Connecticut School of Law at NELLCO Legal Scholarship Repository. It has been accepted for inclusion in University of Connecticut School of Law Articles and Working Papers by an authorized administrator of NELLCO Legal Scholarship Repository. For more information, please contact tracy.thompson@nellco.org.

9/23/2007 11:00:59 AM BERM13 ARTICLES

GLOBAL LEGAL PLURALISM

PAUL SCHIFF BERMAN!

ABSTRACT This Article grapples with the complexities of law in a world of hybrid legal spaces, where a single act or actor is potentially regulated by multiple legal or quasi-legal regimes. In order to conceptualize this world, I introduce literature on legal pluralism, and I suggest that, following its insights, we need to realize that normative conflict among multiple, overlapping legal systems is unavoidable and might even sometimes be desirable, both as a source of alternative ideas and as a site for discourse among multiple community affiliations. Thus, instead of trying to stifle conflict either through an imposition of sovereigntist, territorially-based prerogative or through universalist harmonization schemes, communities might sometimes seek (and increasingly are creating) a wide variety of procedural mechanisms, institutions, and practices for managing, without eliminating, hybridity. Such mechanisms, institutions, and practices can ! Visiting Professor & Visiting Research Scholar, Princeton University Program in Law & Public Affairs; Jesse Root Professor of Law, University of Connecticut School of Law. The central arguments of this Article were presented at conferences at Yale Law School and Princeton University, faculty workshops at Princeton University, the University of Oregon School of Law and the Georgetown University Law Center, and at the Annual Meeting of the Law & Society Association in Berlin. In developing the Article, I have benefited from the insights of David Abraham, Robert Ahdieh, T. Alexander Aleinikoff, Timothy W. Bartley, Mary Anne Case, Kamari Maxine Clarke, Laura Dickinson, Katherine Franke, Robert W. Gordon, Jacob Hacker, Hendrik Hartog, Mark W. Janis, Vicki Jackson, Stan Katz, Harold Hongju Koh, Stephen Kotkin, David Luban, Chibli Mallat, Jamie Mayerfeld, Sally Engle Merry, Naomi Mezey, Andrew Moravcsik, Noah Novagrodsky, Mark Osiel, Hari Osofsky, Deborah N. Pearlstein, Jeremy Paul, David G. Post, Catherine Powell, Margaret Jane Radin, Balakrishnan Rajagopal, Judith Resnik, Lawrence Rosen, Kim Lane Scheppele, David Schneiderman, Kathryn Sikkink, Brian Z. Tamanaha, Gunther Teubner, Cora True-Frost, Wibren van der Burg, Carlos Vázquez, Kay B. Warren, and Carol Weisbrod.

–  –  –

help mediate conflicts by recognizing that multiple communities may legitimately wish to assert their norms over a given act or actor, by seeking ways of reconciling competing norms, and by deferring to other approaches if possible. Moreover, when deference is impossible (because some instances of legal pluralism are repressive, violent, and/or profoundly illiberal), procedures for managing hybridity can at least require an explanation of why a decision maker cannot defer. In sum, pluralism offers not only a more comprehensive descriptive account of the world we live in, but also suggests a potentially useful alternative approach to the design of procedural mechanisms, institutions, and practices.

The Article proceeds in three parts. First, I summarize the literature on legal pluralism and suggest ways in which this literature helps us understand the global legal environment. Second, drawing on pluralist insights, I offer an analytical framework for addressing normative conflicts, one that provides an alternative both to territorially-based sovereigntism and to universalism, and instead opens space for the “jurisgenerative” interplay of multiple normative communities and commitments. This framework generates a series of values and principles that can be used to evaluate the efficacy of procedural mechanisms, institutional designs, and discursive practices for managing hybridity.

Third, I survey a series of such mechanisms, institutions, and practices already in use in a wide variety of doctrinal contexts, and I discuss how they work (or sometimes fail to work) in actual practice. And though each of these mechanisms, institutions, and practices has been discussed individually in the scholarly literature, they have not generally been considered together through a pluralist lens, nor have they been evaluated based on their ability to manage and preserve hybridity. Thus, my analysis offers a significantly different approach, one that injects a distinct set of concerns into debates about global legal interactions. Indeed, although many of these mechanisms, institutions, and practices are often viewed as “second-best” accommodations between hard-line sovereigntist and universalist positions, I argue that they might at least sometimes be preferable to either. In the Conclusion, I suggest implications of this approach for more general thinking about the potential role of law in identifying and negotiating social and cultural difference.





9/23/2007 11:00:59 AM BERM13 2007] GLOBAL LEGAL PLURALISM 1157

TABLE OF CONTENTS

I. INTRODUCTION

II. LEGAL PLURALISM AND THE GLOBAL LEGAL ORDER...... 1169

III. A PLURALIST FRAMEWORK FOR MANAGING LEGAL

CONFLICTS

A. SOVEREIGNTIST TERRITORIALISM

B. UNIVERSALISM

C. PLURALISM

IV. PROCEDURAL MECHANISMS, INSTITUTIONAL DESIGNS,

AND DISCURSIVE PRACTICES FOR MANAGING

HYBRIDITY

A. DIALECTICAL LEGAL INTERACTIONS

B. MARGINS OF APPRECIATION

C. LIMITED AUTONOMY REGIMES

D. SUBSIDIARITY SCHEMES

E. JURISDICTIONAL REDUNDANCIES

F. HYBRID PARTICIPATION ARRANGEMENTS

G. MUTUAL RECOGNITION REGIMES

H. SAFE HARBOR AGREEMENTS

I. A PLURALIST APPROACH TO CONFLICT OF LAWS

V. CONCLUSION

I. INTRODUCTION

We inhabit a world of multiple normative communities.1 Some of those communities impose their norms through officially sanctioned coercive force and formal legal processes. These are the nation-state governments and courts familiar to legal scholars. But of course many other normative communities articulate norms without formal state power behind them. Indeed, legal pluralists have long noted that law does not reside solely in the coercive commands of a sovereign power.2 Rather, law

1. See Robert M. Cover, The Supreme Court, 1982 Term—Foreword: Nomos and Narrative, 97 HARV. L. REV. 4, 4 (1983) [hereinafter Cover, Nomos and Narrative] (“We inhabit a nomos—a normative universe.”).

2. See, e.g., Sally Falk Moore, Legal Systems of the World: An Introductory Guide to Classifications, Typological Interpretations, and Bibliographical Resources, in LAW AND THE SOCIAL SCIENCES 11, 15 (Leon Lipson & Stanton Wheeler eds., 1986) [hereinafter Moore, Legal Systems of the World] (“[N]ot all the phenomena related to law and not all that are lawlike have their source in government.”). For further discussions of legal pluralism, see BOAVENTURA DE SOUSA SANTOS, 9/23/2007 11:00:59 AM BERM13

1158 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 80:1155

is constantly constructed through the contest of these various normgenerating communities.3 Thus, although “official” norms articulated by sovereign entities obviously count as “law,” such official assertions of prescriptive or adjudicatory jurisdiction are only some of the many ways in which normative commitments arise.

Moreover, legal pluralists have sought to document hybrid legal spaces, where more than one legal, or quasi-legal, regime occupies the same social field.4 Historically, such sites were most prominently associated either with colonialism—where the legal system imposed by empire was layered on top of indigenous legal systems5—or the study of religion—where canon law and other spiritual codes have often existed in an uneasy relationship with the state legal system.6 Legal pluralists TOWARD A NEW LEGAL COMMON SENSE: LAW, GLOBALIZATION, AND EMANCIPATION (2d ed. 2002);

LAW AND GLOBALIZATION FROM BELOW: TOWARDS A COSMOPOLITAN LEGALITY (Boaventura de Sousa Santos & César A. Rodríguez-Garavito eds., 2005); CAROL WEISBROD, EMBLEMS OF PLURALISM: CULTURAL DIFFERENCES AND THE STATE (2002); Keebet von Benda-Beckmann, Transnational Dimensions of Legal Pluralism, in BEGEGNUNG UND KONFLIKT: EINE

KULTURANTHROPOLOGISCHE BESTANDSAUFNAHME 33 (2001); Gunther Teubner, ‘Global Bukowina’:

Legal Pluralism in the World Society, in GLOBAL LAW WITHOUT A STATE 3 (Gunther Teubner ed., 1997); Franz von Benda-Beckmann, Who’s Afraid of Legal Pluralism?, 47 J. LEGAL PLURALISM & UNOFFICIAL L. 37 (2002); David M. Engel, Legal Pluralism in an American Community: Perspectives

on a Civil Trial Court, 5 AM. B. FOUND. RES. J. 425 (1980); Marc Galanter, Justice in Many Rooms:

Courts, Private Ordering, and Indigenous Law, 19 J. LEGAL PLURALISM 1, 28–34 (1981); John Griffiths, What Is Legal Pluralism?, 24 J. LEGAL PLURALISM & UNOFFICIAL L. 1 (1986); Sally Engle Merry, International Law and Sociolegal Scholarship: Toward a Spatial Global Legal Pluralism, STUD. IN L. POL. & SOC’Y (forthcoming 2007) [hereinafter Merry, Spatial Legal Pluralism]; Sally Engle Merry, Legal Pluralism, 22 L. & SOC’Y REV. 869, 870 (1988) [hereinafter Merry, Legal Pluralism]; Sally Falk Moore, Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study, 7 L. & SOC’Y REV. 719 (1973) [hereinafter Moore, The Semi-Autonomous Social Field]; Balakrishnan Rajagopal, The Role of Law in Counter-hegemonic Globalization and Global Legal Pluralism: Lessons from the Narmada Valley Struggle in India, 18 LEIDEN J. INT’L L. 345 (2005); Brian Z. Tamanaha, A Non-Essentialist Version of Legal Pluralism, 27 J.L. & SOC’Y 296 (2000).

3. See Cover, Nomos and Narrative, supra note 1, at 43 (“The position that only the state creates law... confuses the status of interpretation with the status of political domination.”). See also

Robert Cover, The Folktales of Justice: Tales of Jurisdiction, in NARRATIVE, VIOLENCE, AND THE LAW:

THE ESSAYS OF ROBERT COVER 173, 176 (Martha Minow, Michael Ryan, & Austin Sarat eds., 1992) [hereinafter Cover, Folktales of Justice] (arguing that “all collective behavior entailing systematic understandings of our commitments to future worlds” can lay “equal claim to the word ‘law’”) (emphasis added); Perry Dane, The Maps of Sovereignty: A Meditation, 12 CARDOZO L. REV. 959, 963– 64 (1991) (“This Article belongs to a body of legal scholarship that refuses to limit the domain of law to the law of the state.”).

4. See Moore, The Semi-Autonomous Social Field, supra note 2, at 720.

5. See, e.g., Leopold Pospisil, Modern and Traditional Administration of Justice in New Guinea, 19 J. LEGAL PLURALISM 93 (1981).

6. See, e.g., CAROL WEISBROD, THE BOUNDARIES OF UTOPIA (1980) [hereinafter WEISBROD, UTOPIA] (examining the contractual underpinnings of four nineteenth-century American religious utopian communities: the Shakers, the Harmony Society, Oneida, and Zoar). As Marc Galanter has observed, the field of church and state is the “locus classicus of thinking about the multiplicity of 9/23/2007 11:00:59 AM BERM13 2007] GLOBAL LEGAL PLURALISM 1159 explored the myriad ways that overlapping legal systems interact with each other and observed that the very existence of multiple systems can at times create openings for contestation, resistance, and creative adaptation.7 In this Article, I apply a pluralist framework to the global arena and argue that this framework is essential if we are to more comprehensively conceptualize a world of hybrid legal spaces. International law scholars have not often paid attention to the pluralist literature, nor have they generally conceived of their field in terms of managing hybridity. Instead, the principal emphasis has been on formal state-to-state relations, the creation of overarching universal norms, or the resolution of disputes by locating them territorially in order to choose a single governing law to apply.8 All of these approaches attempt to eliminate hybridity altogether by imagining that disputes can and should be made susceptible to a single governing normative authority. Yet, it is now clear that the global legal system is an interlocking web of jurisdictional assertions by state, international, and non-state normative communities.9 And each type of overlapping jurisdictional assertion (state versus state; state versus international body; state versus non-state entity) creates a potentially hybrid legal space that is not easily eliminated.10 With regard to state versus state conflicts, the growth of global communications technologies, the rise of multinational corporate entities with no significant territorial center of gravity, and the mobility of capital and people across borders mean that many jurisdictions will feel effects of activities around the globe, leading inevitably to multiple assertions of legal authority over the same act, without regard to territorial location. For

normative orders.” Galanter, supra note 2, at 28. See also Carol Weisbrod, Family, Church and State:

An Essay on Constitutionalism and Religious Authority, 26 J. FAM. L. 741 (1988) (analyzing churchstate relations in the United States from a pluralist perspective).

7. See, e.g., Merry, Legal Pluralism, supra note 2, at 878 (noting room for resistance and autonomy within plural systems).

8. See infra text accompanying notes 82–83.

9. As one commenter puts it:



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