Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (Introduction)

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Global Legal Pluralism: A Jurisprudence of Law Beyond Borders Global Legal Pluralism: A Jurisprudence of Law Beyond Borders

(Introduction) (Introduction)

Paul Schiff Berman

George Washington University Law School

, pberman@law.gwu.edu

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E LIVE IN A WORLD OF MULTIPLE OVERLAPPING

normative communities. For example, I am typ-

ing these words in a house in Massachusetts,

although I am a resident of Maryland, who works in Washington, DC.

Thus, Massachusetts state law may govern some of my activities, while

Maryland law or DC law may be relevant to other aspects of my life. And

in Massachusetts, Maryland, and DC I am also located within a variety of

political sub- divisions, such as towns, cities, counties, wards, neighborhood

districts, water regions, and so on, each of which may have normative

authority over me. Federal law governs many aspects of my life as well,

from the speed limits on the interstate highways to certain environmental

standards affecting the air and water, to the individual liberties the U.S.

Constitution protects. International law may be the source of additional

rights or protections, ranging from standards for trade, technology, and

the use of satellites to the frameworks for regulating the environment,

consumer product labeling, and the conduct of war. And certainly if I

travel abroad or surf Internet sites based overseas or enter into contracts

with foreign entities I will run up against international and transnational

legal norms.

But these governmental normative communities are just the tip of

the iceberg. Nonstate communities may also impose signi cant norma-

tive force. For example, if I think someone is violating the copyright of

this book, I may use international arbitration sanctioned by the World

1 Introduction

GLOBAL LEGAL PLURALISM4

Intellectual Property Organization, a nongovernmental entity. If Web

searches for my book do not place my Web page high enough on the list, I

may need to challenge Google’s search indexing protocols. And I am gov-

erned (or at least strongly in uenced) by tenure rules at my university,

religious rules of my faith (if I am a believer), American Bar Association

rules regarding the conduct of law school classrooms, the metrics used

by US News & World Report when it ranks law schools, and simply the

practices and customs of the academic community of which I am a part.

And on and on.

This book seeks to grapple with the complexities of law in a world

where a single act or actor is potentially regulated by multiple legal or

quasi-legal regimes. Law often operates based on a convenient  ction

that nation-states exist in autonomous, territorially distinct spheres

and that activities therefore fall under the legal jurisdiction of only one

regime at a time. Thus, traditional legal rules have tied jurisdiction to

territory: a state could exercise complete authority within its territorial

borders and no authority beyond it. In the twentieth century, such rules

were loosened, but territorial location remained the principal touch-

stone for assigning legal authority. Accordingly, if one could spatially

ground a dispute, one could most likely determine the legal rule that

would apply.

But consider such a system in today’s world. Should the U.S. govern-

ment be able to sidestep the U.S. Constitution when it houses prisoners in

“offshore” detention facilities in Guant á namo Bay or elsewhere around

the world? Should spatially distant corporations that create serious local

harms be able to escape local legal regulation simply because they are

not physically located in the jurisdiction? When the U.S. government

seeks to shut down the computer of a hacker located in Russia, does

the virus transmitted constitute an act of war or a violation of Russia’s

sovereignty? Does it make sense to think that satellite transmissions,

online interactions, and complex  nancial transactions have any territo-

rial locus at all? How can we best understand the complex relationships

among international, regional, national, and subnational legal systems?

INTRODUCTION 5

And in a world where nonstate actors such as industry standard-setting

bodies, nongovernmental organizations, religious institutions, ethnic

groups, terrorist networks, and others exert signi cant normative pull,

can we build a suf ciently capacious understanding of the very idea of

jurisdiction to address the incredible array of overlapping authorities

that are our daily reality?

Thus, a simple model that looks only to territorial delineations among

of cial state-based legal systems is now simply untenable (if it was ever

useful to begin with). Thankfully, debates about globalization have moved

beyond the polarizing question of whether the nation-state is dying or

not. But one does not need to believe in the death of the nation-state

to recognize both that physical location can no longer be the sole crite-

rion for conceptualizing legal authority and that nation-states must work

within a framework of multiple overlapping jurisdictional assertions by

state, international, and even nonstate communities. Each of these types

of overlapping jurisdictional assertions creates a potentially hybrid legal

space that is not easily eliminated.

With regard to con icts between and among states, the growth of

global communications technologies, the rise of multinational corporate

entities with no signi cant 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 ter-

ritorial location. For example, in 2000 a French court asserted jurisdic-

tion over the U.S.-based web portal Yahoo! because French users could

download Nazi memorabilia and Holocaust denial material via Yahoo!’s

auction sites, in violation of French law.

Yahoo! argued in response that

the French assertion of jurisdiction was impermissibly extraterritorial

in scope because Yahoo!, as a U.S. corporation transmitting material

Tribunal de grande instance (TGI) [ordinary court of original jurisdiction] Paris, May

22, 2000, Ordonnance de r é f é r é , UEJF et Licra c/ Yahoo! Inc. et Yahoo France , available

at http://www.juriscom.net/txt/jurisfr/cti/tgiparis20000522.htm.

GLOBAL LEGAL PLURALISM6

uploaded in the United States, was protected by the First Amendment

of the U.S. Constitution.

Yet, the extraterritoriality charge runs in both

directions. If France is not able to block the access of French citizens to

proscribed material, then the United States will effectively be imposing

First Amendment norms on the entire world. And whatever the solu-

tion to this problem might be, a territorial analysis will not help because

the relevant transaction is both “in” France and not “in” France simulta-

neously. Cross-border environmental,

trade,

intellectual property,

and

tax regulation

raise similar issues.

The problem of multiple states’ asserting jurisdiction over the same

activity is just the beginning, however, because nation-states must

also often share legal authority with one or more international and

regional courts, tribunals, or regulatory entities. Indeed, the Project on

International Courts and Tribunals has identi ed approximately 125

international institutions, all issuing decisions that have some effect on

state legal authority,

though those decisions are sometimes deemed

binding, sometimes merely persuasive, and often fall somewhere between

the two. For example, under the North American Free Trade Agreement

(NAFTA) and other similar agreements, special panels can pass judgment

Id.

See, e.g. , Transboundary Harm in International Law: Lessons from the Trail Smelter

Arbitration (Rebecca M. Bratspies & Russell A. Miller eds., 2006); Philippe Sands,

Turtles and Torturers: The Transformation of International Law, 33 N.Y.U. J. Int’l L. &

Pol. 527 (2001).

See, e.g. , Richard W. Parker, The Use and Abuse of Trade Leverage to Protect the

Global Commons: What We Can Learn from the Tuna-Dolphin Con ict, 12 Geo. Int’l

Envtl. L. Rev. 1 (1999).

See, e.g. , Barcelona.com, Inc. v. Excelentisimo Ayuntamiento de Barcelona, 330 F.3d

617 (4th Cir. 2003); GlobalSantaFe Corp. v. GlobalSantaFe.com, 250 F. Supp. 2d 610

(E.D. Va. 2003); Graeme B. Dinwoodie, A New Copyright Order: Why National Courts

Should Create Global Norms, 149 U. Pa. L. Rev. 469 (2000).

See, e.g. , Paul Schiff Berman, The Globalization of Jurisdiction, 151 U. Pa. L. Rev. 311,

334–7 (2002).

See Project on International Courts and Tribunals, The International Judiciary in

Context (2004), available at http://www.pict-pcti.org/publications/synoptic _chart/

Synop_C4.pdf.

INTRODUCTION 7

on whether domestic legal proceedings have provided fair process.

And

though the panels cannot directly review or overturn local rulings, they

can levy  nes against the federal government signatories of the agree-

ment, thereby undermining the impact of the local judgment.

Thus, now

that a NAFTA tribunal has ruled that the conduct of a Mississippi trial

against a Canadian corporation “was so  awed that it constituted a mis-

carriage of justice amounting to manifest injustice as that expression

is understood in international law,”

it is an open question as to how

Mississippi courts will rule in future cases involving foreign defendants.

Meanwhile, in the realm of human rights, we have seen criminal defen-

dants convicted in state courts in the United States proceed (through

their governments) to the International Court of Justice (ICJ) to argue

that they were denied the right to contact their consulate, as required by

treaty.

Again, although the ICJ judgments are technically unenforceable

in the United States, at least one state court followed the ICJ’s command

anyway.

Meanwhile, outside these more formal adjudicative processes,

there are many powerful transnational networks of governmental regula-

tors setting a kind of international policy as a de facto matter over much

of the global  nancial system, among other areas.

Finally, nonstate legal (or quasi-legal) norms add to this pluralism of

authority. Given increased migration and global communication, it is not

See North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 7–17, 1992, art. 1135,

32 I.L.M. 605, 646.

Id.

Loewen Group, Inc. v. United States , ICSID (W. Bank) Case No. ARB(AF)/98/3 (June

26, 2003) (Final Merits Award), reprinted in 42 I.L.M. 811 (2003), also available at http://

naftaclaims.com/Disputes/USA/Loewen/LoewenFinalAward.pdf. Publicly released

documents on all NAFTA disputes are available at http://www.naftalaw.org.

See generally Robert B. Ahdieh, Between Dialogue and Decree: International Review

of National Courts, 79 N.Y.U. L. Rev. 2029 (2004) (discussing case).

See Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12.

See Torres v. State , No. PCD-04–442, 2004 WL 3711623 (Okla. Crim. App. May 13, 2004)

(granting stay of execution and remanding case for evidentiary hearing).

See, e.g. , David Zaring, Rulemaking and Adjudication in International Law, 46 Colum.

J. Transnat’l L. 563 (2008); David Zaring, Informal Procedure, Hard and Soft, in

International Administration, 5 Chi. J. Int’l L. 547 (2005).

GLOBAL LEGAL PLURALISM8

surprising that people feel ties to, and act on the basis of af liations with,

multiple communities in addition to their territorial ones. Such commu-

nities may be ethnic, religious, or epistemic; transnational, subnational,

or international; and the norms asserted by such communities frequently

challenge territorially based authority. Indeed, canon law and other reli-

gious community norms have long operated in signi cant overlap with

state law. And in the Middle East and elsewhere, con icts between a per-

sonal law tied to religion and a territorial law tied to the nation-state con-

tinue to pose constitutional and other challenges.

Bonds of ethnicity can

also create signi cant normative communities. For example, some com-

mentators advocate regimes that give ethnic minorities limited autonomy

within larger nation-states.

Transnationally, when members of an ethnic

diaspora purchase securities issued by their “home” country, one might

argue that, regardless of where, territorially, the bonds are purchased, the

transactions should be governed by the law of the “homeland.”

Finally,

we see communities of transnational bankers and accountants develop-

ing their own regulatory regimes governing trade  nance

or accounting

standards,

as well as the use of modern forms of lex mercatoria

See, e.g. , Chibli Mallat, On the Speci city of Middle Eastern Constitutionalism, 38 Case

W. Res. J. Int’l L. 13, 47–55 (2006).

See, e.g. , Henry J. Steiner, Ideals and Counter-Ideals in the Struggle over Autonomy

Regimes for Minorities, 66 Notre Dame L. Rev. 1539, 1541–2 (1991) (identifying three

different types of autonomy regimes for ethnic minorities).

See Anupam Chander, Diaspora Bonds, 76 N.Y.U. L. Rev. 1005, 1060–74 (2001) (describ-

ing debt instruments offered by the Indian government to raise capital principally from

its diaspora).

See Janet Koven Levit, A Bottom-Up Approach to International Lawmaking: The Tale

of Three Trade Finance Instruments, 30 Yale J. Int’l L. 125 (2005).

For example, the International Accounting Standards Board is an independent, not-for-

pro t organization that seeks “to develop a single set of high quality, understandable,

enforceable and globally accepted international  nancial reporting standards.” IFRS

Foundation, About the IFRS Foundation and the IASB, available at http://www.ifrs.org/

The+organisation/IASCF+and+IASB.htm.

See, e.g. , Clayton P. Gillette, The Law Merchant in the Modern Age: Institutional Design

and International Usages Under the CISG, 5 Chi. J. Int’l L. 157, 159 (2004) (noting

that the Convention “explicitly incorporates trade usages into contracts that it governs,

permits usages to trump con icting [Convention] provisions, and authorizes courts to

INTRODUCTION 9

govern business relations.

Such nonstate legal systems often in uence

(or are incorporated in) state or international regimes.

These spheres of complex overlapping legal authority are, not sur-

prisingly, sites of con ict and confusion. In response to this hybrid reality,

communities might seek to “solve” such con icts either by reimposing the

primacy of territorially based (and often nation-state-based) authority or

by seeking universal harmonization. Thus, on the one hand, communities

may try to seal themselves off from outside in uence, either by retreating

from the rest of the world and becoming more insular (as many religious

groups seek to do), by building walls either literal or regulatory to pro-

tect the community from outsiders, by taking measures to limit outside

in uence (U.S. legislation seeking to discipline judges for citing foreign or

international law is but one prominent example), or by falling back on ter-

ritorially based jurisdiction or choice-of-law rules. At the other extreme,

we see calls for harmonization of norms, more treaties, the construction of

international governing bodies, and the creation of “world law.”

interpret and complete contracts by reference to usages”). But see Celia Wasserstein

Fassberg, Lex Mercatoria – Hoist with Its Own Petard? 5 Chi. J. Int’l L. 67 (2004) (argu-

ing that the modern revival of lex mercatoria departs signi cantly from the historical

conception).

See, e.g. , Amitai Aviram, A Paradox of Spontaneous Formation: The Evolution of Private

Legal Systems, 22 Yale L. & Pol’y Rev. 1 (2004) (using game theory to argue that the exist-

ence of preexisting networks enhances a private legal system’s ability to enforce norms);

Lisa Bernstein, Opting Out of the Legal System: Extralegal Contractual Relations in the

Diamond Industry, 21 J. Legal Stud. 115 (1992) (discussing the system of “private law-

making” in the New York Diamond Dealers Club); Lisa Bernstein, Private Commercial

Law in the Cotton Industry: Creating Cooperation Through Rules, Norms, and Institutions,

99 Mich. L. Rev. 1724 (2001) (describing the nonstate legal system used to govern com-

mercial transactions in the cotton industry); Eric A. Feldman, The Tuna Court: Law and

Norms in the World’s Premier Fish Market, 94 Cal. L. Rev. 313 (2006) (discussing a “Tuna

Court” in Japan that adjudicates disputes about sale prices in a tuna market).

See, e.g. , Levit, supra note 18, at 165 (describing ways in which formal lawmaking insti-

tutions such as the World Trade Organization have, over time, appropriated nonstate

trade  nance norms into their of cial legal instruments). See generally Carol Weisbrod,

Fusion Folk: A Comment on Law and Music, 20 Cardozo L. Rev. 1439 (1999) (using the

incorporation of folk music into “high culture” classical compositions as a metaphor for

understanding the relationship between state and nonstate law).

GLOBAL LEGAL PLURALISM10

I argue that we should be wary of pinning our hopes on legal regimes

that rely either on reimposing sovereigntist

territorial insularity or

on striving for universals. Not only are such strategies sometimes nor-

matively undesirable, but more fundamentally they simply will not be

successful in many circumstances. As I will address in more detail, the

in uence and application of foreign norms or foreign decision-making

bodies may be useful and productive, but in any event they are inevitable

and cannot be willed away by  at.

Therefore, I suggest an alternative response to legal hybridity: we

might deliberately seek to create or preserve spaces for productive inter-

action among multiple, overlapping legal systems by developing proce-

dural mechanisms, institutions, and practices that aim to manage, without

eliminating, the legal pluralism we see around us . Such mechanisms, insti-

tutions, and practices can help mediate con icts by recognizing that mul-

tiple 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 alternative approaches if possible. And even when a deci-

sion maker cannot defer to an alternative norm (because some assertions

of norms are repressive, violent, and/or profoundly illiberal), procedures

for managing pluralism can at least require an explanation of why defer-

ence is impossible.

The excruciatingly dif cult case-by-case questions concerning how

much to defer to another normative community and how much to impose

the norms of one’s own community are probably impossible to answer

de nitively. The crucial antecedent point, however, is that although peo-

ple may never reach agreement on norms, they may at least acquiesce

in procedural mechanisms, institutions, or practices that take pluralism

seriously, rather than ignoring it through assertions of territorially based

power or dissolving it through universalist imperatives. Processes for man-

aging pluralism seek to preserve spaces of opportunity for contestation

I borrow the term “sovereigntist” from Peter Spiro, The New Sovereigntists: American

Exceptionalism and Its False Prophets, Foreign Affairs 9–15 (Nov./Dec. 2000).

INTRODUCTION 11

and local variation. Accordingly, a focus on hybridity may at times be

both normatively preferable and more practical precisely because agree-

ment on substantive norms is so dif cult. And again, the claim is only that

the independent values of pluralism should always be factored into the

analysis, not that they should never be trumped by other considerations.

Of course, even if pluralist institutions and processes better re ect

the complexity of the world around us, that is not necessarily a reason

to adopt them. Yet, we may  nd that the added norms, viewpoints, and

participants produce better decision making, better adherence to those

decisions by participants and nonparticipants alike, and ultimately better

real-world outcomes. And while this may not always be so, the essential

point is that in the design of procedures, institutions, and discursive prac-

tices these possible bene ts need to be considered.

This alternative jurisprudence I propose is fundamentally both cos-

mopolitan and pluralist . Thus, I should take a moment at the outset to

explain what I mean by both terms. This is particularly important because

in political and scholarly discourse these terms are often subject to vary-

ing uses, meanings, and connotations.

By cosmopolitan, I mean to invoke a framework recognizing that we

are all fundamentally members of multiple communities, both local and

global, territorial and epistemic. Unfortunately, many con ate cosmopol-

itanism with universalism.

Yet cosmopolitanism does not require a

belief in a single global welfare or even a single universal set of governing

norms; nor does it necessarily require that global welfare trump state or

local welfare. Instead, cosmopolitanism is a useful trope for conceptual-

izing the current period of interaction across territorial borders precisely

See, e.g. , Viet D. Dinh, Nationalism in the Age of Terror, 56 Fla. L. Rev. 867, 879 (2004)

(“Rather than aspiring to universal cosmopolitanism , statelessness may well foster rever-

sion to a sel sh individualism.”) (emphasis added); see also Bruce Ackerman, Rooted

Cosmopolitanism, 104 Ethics 516, 534 (1994) (“If I were a European right now, I hope

I would have the guts to stand up for rootless cosmopolitanism: forget this nationalistic

claptrap, and let us build a world worthy of free and equal human beings.”); Anupam

Chander, Diaspora Bonds, 76 N.Y.U. L. Rev. 1005, 1046 (2001) (“The cosmopolitan

model . . . dissolves the multirootedness of diasporas into a global identity.”).

GLOBAL LEGAL PLURALISM12

because it recognizes that people have multiple af liations, extending

from the local to the global (and many nonterritorial af liations as well).

Thus, cosmopolitanism is emphatically not a model of international citi-

zenship in the sense of international harmonization and standardization,

but is instead a recognition of multiple refracted differences where peo-

ple acknowledge links with the “other” without demanding either assim-

ilation or ostracism.

Pluralism goes even further and recognizes that our conception of law

must include more than just of cially sanctioned governmental edicts or

formal court documents. As discussed previously, many different non-

state communities assert various forms of jurisdiction and impose all

kinds of normative demands. Moreover, people often feel themselves to

be bound by such entities, regardless of the formal status of those entities.

Indeed, legal pluralists have long noted that law does not reside solely in

the coercive commands of a sovereign power.

Rather, law is constantly

See, e.g. , Sally Falk Moore, Legal Systems of the World: An Introductory Guide to

Classi cations, Typological Interpretations, and Bibliographical Resources, in Law

and the Social Sciences 11, 15 (Leon Lipson & Stanton Wheeler eds., 1986) (“[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 Keebet von Benda-

Beckmann, Transnational Dimensions of Legal Pluralism, in Begegnung und Kon ikt:

eine kulturanthropologische Bestandsaufnahme 33, 33–48 (2001); Boaventura de Sousa

Santos, Toward a New Legal Common Sense: Law, Globalization, and Emancipation

(William Twinning & Christopher McCrudden eds., 2d ed., 2002); Law and Globalization

from Below: Towards a Cosmopolitan Legality (Boaventura de Sousa Santos & C é sar

A. Rodr í guez-Garavito eds., 2005); Gunther Teubner, ‘Global Bukowina’: Legal

Pluralism in the World Society, in Global Law Without a State 3–28 (Gunther Teubner

ed., 1997); Carol Weisbrod, Emblems of Pluralism: Cultural Differences and the State

(2002); Franz von Benda-Beckmann, Who’s Afraid of Legal Pluralism? 47 J. Legal

Pluralism & Unof cial 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 Grif ths, What Is Legal Pluralism? 24 J.

Legal Pluralism & Unof cial L. 1 (1986); Sally Engle Merry, Legal Pluralism, 22 Law &

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 Law. & Soc’y Rev. 719 (1973) [hereinafter Moore, The Semi-Autonomous Social

Field]; Balakrishnan Rajagopal, The Role of Law in Counter-hegemonic Globalization

INTRODUCTION 13

constructed through the contest of these various norm-generating

communities.

Thus, although “of cial” norms articulated by sovereign

entities obviously count as “law,” such of cial 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  eld.

Historically, such sites were most prominently associ-

ated either with colonialism – where the legal system imposed by empire

was layered on top of indigenous legal systems

– or the study of reli-

gion – where, as noted previously, canon law and other spiritual codes

have often existed in an uneasy relationship with the state legal system.

and Global Legal Pluralism: Lessons from the Narmada Valley Struggle in India, 18

Leiden J. Int’l L. 345 (2005) (U.K.); Brian Z. Tamanaha, A Non-Essentialist Version

of Legal Pluralism, 27 J.L. & Soc’y 296 (2000); Sally Engle Merry, International Law

and Sociolegal Scholarship: Toward a Spatial Global Legal Pluralism (Studies in Law,

Politics, & Society, Vol. 41 Austin Sarat ed., 2007).

See Robert Cover, Foreword: Nomos and Narrative, The Supreme Court 1982 Term,

97 Harv. L. Rev. 4, 43 (1983) [hereinafter Cover, Nomos and Narrative] (“The position

that only the state creates law . . . confuses the status of interpretation with the sta-

tus 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)(“[A]ll collective behav-

ior entailing systematic understandings of our commitments to future worlds [can

lay] equal claim to the word ‘law.’”) (alterations in original); Perry Dane, The Maps of

Sovereignty: A Meditation, 12 Cardozo L. Rev. 959, 963–4 (1991) (“This Article belongs

to a body of legal scholarship that refuses to limit the domain of law to the law of the

state.”).

See Moore, The Semi-Autonomous Social Field, supra note 25, at 720.

See, e.g. , Leopold Pospisil, Modern and Traditional Administration of Justice in New

Guinea, 19 J. Legal Pluralism 93 (1981).

See, e.g. , Carol Weisbrod, The Boundaries of Utopia (1980) (examining the contrac-

tual underpinnings of four nineteenth-century American religious utopian commu-

nities: the Shakers, the Harmony Society, Oneida, and Zoar). As Marc Galanter has

observed, the  eld of church and state is the “locus classicus of thinking about the mul-

tiplicity of normative orders.” Galanter, supra note 25, at 28; see also Carol Weisbrod,

Family, Church and State: An Essay on Constitutionalism and Religious Authority, 26

J. Fam. L. 741 (1988) (analyzing church-state relations in the United States from a plu-

ralist perspective).

GLOBAL LEGAL PLURALISM14

Legal pluralists 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 cre-

ative adaptation.

In this book, I apply a cosmopolitan pluralist framework to the global

arena and argue that this framework is essential if we are to more com-

prehensively conceptualize a world of hybrid legal spaces. This approach,

I realize, is unlikely to be fully satisfying either to committed nation-

state sovereigntists or to committed universalists. Indeed, these poles in

some ways echo those that Martii Koskenniemi famously identi ed as

the irreconcilable positions inherent in all international legal argument.

Thus, sovereigntists will object to the idea that nation-states should

ever take into account international, transnational, or nonstate norms.

Universalists, for their part, will chafe at the idea that international norms

should ever be subordinated to local practices that may be less liberal or

less rights-protecting. And even hard-line pluralists will complain that a

view focusing on how of cial actors respond to hybridity is overly state-

centric.

All I can say to such objections is that if a perspective displeases

everyone to some extent, it is, for that very reason, also likely to be a

perspective that manages hybridity in the only way possible: by forging

provisional compromises that fully satisfy no one but may at least gener-

ate grudging acquiescence. And, in a world of multiple norms, such pro-

visional compromises may ultimately be the best we can do. In any event,

the central argument of this book is that hybridity is a reality we can-

not escape, and a pure sovereigntist or universalist position will often be

unsustainable as a practical matter. Thus, cosmopolitan pluralism offers

See, e.g. , Merry, Legal Pluralism, supra note 25, at 878 (noting room for resistance and

autonomy within plural systems).

See Martii Koskenniemi, From Apology to Utopia: The Structure of International Legal

Argument (1989) (rev. ed. 2006). I am grateful to Duncan Hollis for identifying key

points of contact between my argument and Koskenniemi’s.

In part, this objection is grounded in concerns about loss of democratic accountability

and legitimacy. I address some of these concerns in Chapter 3.

INTRODUCTION 15

both a more accurate descriptive account of the world we live in and a

potentially useful alternative approach to the design of procedural mech-

anisms, institutions, and discursive practices.

Of course, one thing that a cosmopolitan pluralist approach will

not do is provide an authoritative metric for determining which norms

should prevail in this messy hybrid world. Nor does it de nitively answer

the question of who gets to decide. Indeed, pluralism fundamentally chal-

lenges both positivist and natural rights–based assumptions that there

can ever be a single answer to such questions. For example, as pluralists

have documented in the colonial context, the state’s efforts to squelch

a nonstate community are likely only to be partial,

and so the state’s

assertion of its own trumping authority is not the end of the debate, but

only one gambit in an ongoing normative discourse that has no  nal

resolution. Likewise, there is no external position from which one could

make a de nitive statement as to who is authorized to make decisions in

any given case. Rather, a statement of authority is itself inevitably open

to contest. Power disparities matter, of course, and those who wield coer-

cive force may be able to silence competing voices for a time. But even

that sort of temporary silencing is rarely the end of the story either. Thus,

instead of the unitary answers assumed by both universalism and sov-

ereigntist territorialism, cosmopolitan pluralism provides a “jurisgenera-

tive” model

that focuses on the creative interventions made by various

communities drawing on a variety of normative sources in ongoing polit-

ical, rhetorical, and legal iterations.

See, e.g. , Lauren Benton, Making Order out of Trouble: Jurisdictional Politics in the

Spanish Colonial Borderlands, 26 Law & Soc. Inquiry 373, 375–6 (2001) (describing

jurisdictional politics in seventeenth-century New Mexico and observing that, while

“the crown made aggressive claims that royal authority and state law superseded other

legal authorities,” in reality “[j]urisdictional disputes became not just commonplace but

a de ning feature of the legal order”).

See Cover, Nomos and Narrative, supra note 26, at 11–15.

Cf. Seyla Benhabib, Another Cosmopolitanism 49 (Robert Post, ed., 2006) 49 (2006)

(“Whereas natural right philosophies assume that the principles that undergird demo-

cratic politics are impervious to transformative acts of popular collective will, and

GLOBAL LEGAL PLURALISM16

Certainly individual communities may decide that their norms should

trump those of others or that their norms are authoritative. So, for exam-

ple, a liberal democratic state might decide that certain illiberal commu-

nity practices are so beyond the pale that they cannot be countenanced,

and therefore the state may invoke its authority to sti e those practices.

But a cosmopolitan pluralist approach recognizes that such statements

of normative commitment and authority are themselves subject to dis-

pute. Accordingly, instead of clinging to the vain hope that unitary claims

to authoritative law can ever be de nitive, cosmopolitan pluralism rec-

ognizes the inevitability (if not always the desirability) of hybridity.

Cosmopolitan pluralism is thus not a framework that dictates particular

substantive outcomes. It observes that various actors pursue norms, and

it studies the interplay, but it does not propose a hierarchy of substantive

norms and values.

Nevertheless, while it does not offer substantive norms, a cosmopol-

itan pluralist approach may favor procedural mechanisms, institutions,

and practices that provide opportunities for plural voices. Such proce-

dures can potentially help to channel (or even tame) normative con ict

to some degree by bringing multiple actors together into a shared social

space. In addition, including multiple voices may lead to better substan-

tive outcomes because such multiplicity provides the possibility for cre-

ative alternatives that might otherwise not be heard. This cosmopolitan

pluralist commitment can, of course, have strong normative implications

because it asks decision makers and institutional designers at least to

consider the independent value of pluralism. For example, as discussed

in more detail later, we might favor a hybrid domestic-international tri-

bunal over either a fully domestic or a fully international one because it

includes a more diverse range of actors, or we might favor complemen-

tarity or subsidiarity regimes because they encourage dialogue among

whereas legal positivism identi es democratic legitimacy with the correctly generated

legal norms of a sovereign legislature, jurisgenerative politics is a model that permits us

to think of creative interventions that mediate between universal norms and the will of

democratic majorities.”).

INTRODUCTION 17

multiple jurisdictions, and so on. And we might prefer con ict of law

frameworks that recognize the reality of hybridity rather than arbitrarily

choosing a single governing legal regime to resolve problems implicating

multiple communities. In any event, cosmopolitan pluralism questions

whether a single world public order of the sort often contemplated by

both nation-state sovereigntists and international law triumphalists is

achievable, even assuming it were desirable.

At the same time, mechanisms, institutions, and practices of the sort

discussed in this book require actors at least to be willing to take part in

a common set of discursive forms. This is not as idealistic as it may at  rst

appear. As Jeremy Waldron has argued, “[t]he dif culties of inter-cultural

or religious-secular dialogue are often exaggerated when we talk about

the incommensurability of cultural frameworks and the impossibility of

conversation without a common conceptual scheme. In fact conversation

between members of different cultural and religious communities is sel-

dom a dialogue of the deaf.”

Nevertheless, it is certainly true that some

normative systems deny even this limited goal of mutual dialogue. Such

systems would (correctly) recognize the liberal bias within the vision of

procedural pluralism I explore here,

and they may reject the vision on

that basis. For example, while abortion rights and antiabortion activists

could, despite their differences, be said to share a willingness to engage in

a common practice of constitutional adjudication, those bombing abor-

tion clinics are not similarly willing, and accordingly there may not be any

way to accommodate such actors even within a more pluralist framework.

Likewise, communities that refuse to allow even the participation of par-

ticular subgroups, such as women or minorities, may be dif cult to include

within the cosmopolitan pluralist vision I have in mind. Of course, these

Jeremy Waldron, Public Reason and “Justi cation” in the Courtroom, 1 J.L. Phil. &

Culture 107, 112 (2007).

This is not to say that the vision of pluralism I explore should be taken as synonym-

ous with liberalism, though they share many attributes. Pluralism arguably assigns an

independent value to dialogue among communities and an importance to community

af liation that is absent from (or at least less central to) liberal theory.

GLOBAL LEGAL PLURALISM18

groups are undeniably important forces to recognize and take account of

as a descriptive matter. But from a normative perspective, an embrace of

a cosmopolitan pluralist jurisprudence need not commit one to a world-

view free from judgment, where all positions are equivalently embraced.

Thus, I argue not necessarily for undifferentiated inclusion, but for a set

of procedural mechanisms, institutions, and practices that are more likely

to expand the range of voices heard or considered, thereby creating more

opportunities to forge a common social space than either sovereigntist

territorialism or universalism.

In that sense, the vision I pursue here is

at least partly indebted to the proceduralist vision of J ü rgen Habermas

and can perhaps be embraced or criticized on similar grounds.

Chapter 2 begins by providing several illustrative examples of jur-

isdictional hybridity, where multiple legal norms of international, state,

substate, and nonstate entities may overlap. I also introduce literature on

legal pluralism and argue that pluralism provides a helpful framework

for understanding a hybrid world where normative assertions of multiple

entities – both state and nonstate – compete for primacy.

Chapters 3 and 4 then consider the two most common responses

we see in the legal arena to the sort of hybridity described in Chapter

2: sovereigntist territorialism and universalism. While each of these

approaches may sometimes be deemed necessary and may sometimes

be useful in addressing overlapping norms, I argue that they have serious

shortcomings. First, as a normative matter both sovereigntist territorial-

ism and universalism retreat from the potential bene ts of cosmopolitan

pluralism by limiting the range of norms considered and the range of

voices at the table. This may be a problem in and of itself because enter-

taining plural points of view within a procedural or institutional struc-

ture may carry independent bene ts of inclusion, diversity, creativity,

This focus on jurisgenerative structure, rather than on the necessary inclusion of, or

deference to, all points of view, may differentiate legal pluralism as I use it here from

multiculturalism.

See generally Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse

Theory of Law and Democracy (trans. William Rehg, 1996).

INTRODUCTION 19

and dialogue that go beyond the outcome reached. And, of course, the

outcome reached may also ultimately be more creative and more effec-

tive because of the diversity of input. Second, even if one is dubious

about the normative case for cosmopolitan pluralism, I argue that, as a

descriptive matter, neither sovereigntist territorialism nor universalism

will actually be a fully effective response to a world of legal assertions

beyond borders, and therefore a broader and more  exible framework

will often be necessary simply to cope with the messy reality of law on

the ground.

Chapters 5 and 6 lay out the core principles that undergird a cos-

mopolitan pluralist approach and then describe a variety of procedural

mechanisms, institutional designs, and discursive practices already at

play in the world that take such an approach. Although each of these

examples can be subjected to criticism on a variety of grounds, they do at

least attempt to build structures that seek to manage, without eliminat-

ing, pluralism.

Finally, Chapters 7 through 9 address the knotty doctrines known in

the United States as con ict of laws, though sometimes referred to else-

where as private international law. These doctrines attempt to negotiate

the interaction of communities by delineating jurisdictional boundaries,

determining which communities’ norms should apply to multicommunity

disputes, and analyzing the circumstances under which one community

might enforce the judgment reached by another community. As such, these

doctrines are potentially fundamental areas for employing a cosmopol-

itan pluralist frame to the legal negotiation of difference. Yet, too often

con ict of laws is relegated to a technocratic process of trying to forge

rules that will clarify boundaries and render only one community or one

set of norms legitimate or dominant. I argue instead that these doctrines

should engage interdisciplinary scholars of law and globalization and

that they offer a potential site for creative thinking about the interaction

of norms. And, although as noted previously my aim throughout the book

is to suggest a conceptual approach not to provide doctrinal answers, I do

GLOBAL LEGAL PLURALISM20

offer a few illustrative examples of how each of these con icts doctrines

might be affected by a cosmopolitan pluralist framework.

One  nal potential criticism of the book should perhaps be addressed

at the outset. In the oft-discussed scholarly divide between “lumpers”

and “splitters,”

I am clearly a “lumper.” That is, I offer here a highly syn-

thetic account that draws ties among a wide variety of different doctrines

and lumps together a variety of different scholarly positions into broader

categories. As such, I can rightly be criticized for eliding potentially

important distinctions and grouping together phenomena or perspec-

tives that are quite different from each other. For example, I treat sov-

ereigntist territorialism as a single perspective, even though it represents

a wide variety of positions, some of which focus more on nation-state

sovereignty, while others focus more on territorial approaches to con ict

of laws, and so on. Yet, despite some obvious problems, I believe lumping

nevertheless serves valuable purposes. By grouping together categories

of thought and legal doctrines that are traditionally treated as distinct, we

may be able to recognize broader patterns, make connections, and iden-

tify innovations that might otherwise have been opaque. Most import-

antly, while splitting is particularly useful for exploring  ne distinctions

with precision once a paradigm has been established, lumping can help

foster the creative imaginings that make new paradigms possible. In any

event, while both approaches are valuable and necessary, this book is

dedicated to sparking broad-based creative thinking about a world of

law beyond borders and therefore lumps concepts together, with all the

advantages and disadvantages such an approach entails.

True to that lumping spirit, the book seeks to engage scholars from a

wide variety of  elds, including those in anthropology, sociology, cultural

studies, international relations, and critical geography, as well as legal

scholars studying Internet law, international business, trade and  nance,

See George Gaylord Simpson, The Principles of Classi cation and a Classi cation

of Mammals, 85 Bulletin of the American Museum of Natural History 1, 23, (1945)

(“Splitters [see] very small units . . . . Lumpers [see] only large units . . ..”) (alterations in

original).

INTRODUCTION 21

public international law, and con ict of laws. I also hope to contribute to

ongoing debates about the ef cacy of international law, changing struc-

tures of sovereignty, and cosmopolitan theory. I argue that rational choice

understandings of how international law works or pure theory debates

about sovereignty are limited because they focus too heavily on coercive

power, thereby deemphasizing the role of rhetorical persuasion, informal

articulations of legal norms, changes in legal consciousness, and networks

of af liation that may not possess literal enforcement power. Accordingly,

my invocation of “law beyond borders” refers not only to the assertion of

norms across territorial borders, but also the fact that legal articulations

often function “beyond” the supposed conceptual borders between law

on the one hand and political rhetoric on the other.

And if, as discussed

previously, cosmopolitanism is de ned not as universalism but as an

acknowledgment of multiple af liation and a call for conversation across

difference, then this book also explores law as a crucial potential site for

cosmopolitan dialogue.

In all of this discussion, I emphasize a cultural analysis of law, which

argues that law both re ects and constructs social reality. This is, of course,

not the only way of understanding how law operates. For example, one

might think law is simply about constructing simple, easily de ned rules

that promote ef ciency and predictability, regardless of how they re ect

social reality. Yet, even if such an impulse is part of the web of ratio-

nales underlying legal rules, I believe it does not capture the rich reality

of how law operates in relation to social life. Indeed, a simple formalist

rule that fails to accord with social reality and lived experience tends

to be replaced over time,  rst by what are known as legal  ctions and

then by new legal norms. For example, as discussed in more detail in

Chapter 3, very clear, simple nineteenth-century jurisdictional rules that

depended on physical presence in a territorial location could not cope

with the changed social reality wrought by advances in transportation

See Koskenniemi, supra note 31, at 69 (“Before any meaningful attempt at reform . . .

the idea of legal objectivity – and with it the conventional distinction between law, pol-

itics and morality (justice) needs to be rethought.”).

GLOBAL LEGAL PLURALISM22

and communications technologies and the resulting shifts in how corpora-

tions and governments operated and how people increasingly lived their

lives. Accordingly, those jurisdictional rules were altered,  rst, through

somewhat strained judicially created notions of what constitutes “pres-

ence” in a location and then by a completely new legal regime for con-

ceptualizing jurisdiction that shifted the focus away from simple physical

presence. Thus, I start from the premise that social reality matters in legal

discussions and that a more culturally based analytical framework should

at least be an important part of our discussions of how to conceptualize

law and globalization.

Ultimately, by studying the many local settings in which the norms of

multiple communities – geographical, ethnic, national, and epistemic –

become operative, scholars can gain a far more nuanced understanding

of the international and transnational legal terrain. This is a world in

which claims to coercive power, abstract notions of legitimacy, and argu-

ments about legal authority are only part of an ongoing conversation,

not the  nal determining factors. It is a world where “jurisgenerative”

practices proliferate, creating opportunities for contestation and creative

adaptation.

And though we may not like all the norms being articulated

at any given moment, it will do no good to ignore them or insist on their

lack of authority. In a hybrid world, law is an ongoing process of articu-

lation, adaptation, rearticulation, absorption, resistance, deployment, and

on and on. It is a process that never ends, and scholars and policy makers

would do well to study the multiplicity and engage in the conversation,

rather than impose a top-down framework that cannot help but distort

the astonishing variety on the ground.

See id. at 556, 596–9 (embracing international legal discourse as a space for “open pol-

itical con ict and constant institutional revision”).