Essays On Legal Pluralism

1. Introduction

It is now commonplace to explore the myriad ways in which globalization has engendered changes in the structures and sources of law.1 Of course, the concept of “globalization” is not uncontested: one cannot always be entirely certain what globalization really entails or what kind of phenomena it comprises. Yet, it is uncontested that we are in a transition period in which the traditional conceptions of law are insufficient for capturing the present shifts in the contours of law2 and the role of the state in the process of the production of legal norms.3 Lest one think this is all a matter for municipal4 law, international law has not escaped these shifts either. The explosion of legal normativity in quantitative and qualitative terms in the supranational arena has affected the basic tenets and underpinnings of international law. This transformation can be easily noticed within the realm of scholarship. In a period of 20 years, international law has gone from a state of affirmation5 to the possibility of disappearance,6 to a state of uncertain calm in which it is not clear what the next paradigm will be. The only certainty is the presence of a renegotiation of the structural conditions in which legal normativity is being produced. Beyond that, nothing is certain.

In order to make sense of this “disorder of normative orders,”7 several normative proposals have been advanced. The most prominent one—in terms of ink spilled for and against it—has come from the constitutionalization camp. Under this rubric, legal scholars argue that international law is in the process of being (or should be) “constitutionalized.” Of course, there is much diversity of opinion within this camp. Nevertheless, there is clearly a common core that can be discerned: the desire to extend the typical elements from state constitutional law in liberal democracies to the international legal order. In this vein, enthusiasts promote a reading of international law in which the features of constitutional law are transposed and adapted to the supranational domain. One of the leading figures in advancing this discourse is Mattias Kumm. In an ever-developing corpus, he expounds his vision of a political order in which constitutional principles dictate the production of legality.8

In contrast to the constitutionalist perspective, a seemingly radically different normative proposal has lately gained some traction and is the object of discussion in the present essay. Legal pluralism, which not so long ago was confined to the socio-legal domain,9 has increasingly gained attention as a normative framework within which to analyze and explain current developments in the transnationalization of the legal sphere. Although legal pluralism does not (so far) attract the same intensity of interest as constitutionalism, it has become an attractive option for reasons that we will explain below.

For more than a decade, Paul Schiff Berman has been one of the leading advocates of the normative virtues of legal pluralism.10 His book Global Legal Pluralism is the result of these considerable efforts.11 In this volume, he articulates the core features of his pluralist position. He attempts to make a convincing case for the acceptability and superiority of legal pluralism as the normative framework in dealing with the ex istence of multiple normative realms.

We will argue that, as it currently stands, legal pluralism does not provide a sufficiently adequate normative framework for managing conflict between and among normative orders. The principal reason for this stance is our conclusion that its basic premises are implausible. Berman’s argument helps us in illuminating the challenges legal pluralists have to overcome if they really want to provide a suitable and cogent alternative to global constitutionalism in relation to the growing complexity of law and its relations to other sources of normativity.

A caveat is in order. As will become clear, we are not discussing the utility of legal pluralism as an analytical framework for describing the legal landscape. What we are dealing with is the viability of legal pluralism as a normative framework (this being the premise of Berman’s book). As Hume famously observed, one cannot always derive an ought from an is.12 Thus, whatever the explanatory merits of pluralism might be, there is no direct translation of those efforts into the normative sphere. Hence, our focus is on the explanatory efficacy of pluralism as a normative theory of law.

2. A new jurisprudence: A cosmopolitan pluralist outlook

The crucial empirical premise of Global Legal Pluralism is the claim that “[w]e live in a world of multiple overlapping normative communities” (at 3). This claim cannot be disputed. From here, Berman wants to move beyond the fiction of the nation-state as the only source of (legal) normativity: he wants to push beyond the model in which the territorially defined nation-state is “treated as the only relevant normative community” (at 61). For him, the notion of law operating in territorially distinctive units as the basis for state officials to exercise power is a convenient fiction that has to be discarded in favor of a broader understanding of law and normativity (at 4–5).13 The presence of multiple overlapping sites of normativity (and not just legal normativity) necessitates a reconsideration of law’s basic assumptions: we need to recognize that we inhabit a world of constant normative “hybridity”.14

In order to illustrate this legal hybridity, Berman offers several examples in which different types of normative conflicts arise. To the classic “state-versus-state” conflict, he adds conflicts of norms arising from the state versus the international, the nation-state versus a substate, and a state versus a non-state. The plurality of distinct normative communities enables him to argue that normative clashes are here to stay, and that only a commitment to pluralism can do justice to the present state of affairs. Berman opposes two lines of thought that also attempt to explain the unraveling of traditional structures: sovereigntists and universalists. We shall treat both in more detail below. Instead of subscribing to one or the other approach he proposes to:

deliberately seek to create and preserve spaces for productive interaction among multiple overlapping legal systems by developing procedural mechanisms, institutions, and practices that aim to manage, without eliminating, the legal pluralism we see around us (at 10).

Berman grounds his proposal in a double theoretical approach, one which he dubs “cosmopolitan pluralist.” As the name implies, it is ostensibly cosmopolitan as it re cognizes that we all belong to a myriad of normative communities (at 11). It is plural in the sense that it acknowledges and accepts that law is a phenomenon that goes beyond the (nation) state. There are multiple normative commitments that can arise from different spaces that cannot be tracked back only to state (or official) institutions. Law is created by the different norm-generating communities that populate the globe.

This normative approach has a distinctly procedural profile. For Berman, his framework has to be understood as the only plausible one in managing competing normative commitments. Because normativity is pervasive, and conflicts an inescapable feature of life, substantive normative considerations have to yield to normative proceduralism. The purpose of cosmopolitan pluralism, according to Berman, is to simply manage legal hybridity by devising procedures in which the voices of different communities can be heard. The most we can achieve is to channel (or tame) opposing normative commitments (at 16)15 with the hope that by expanding the range of voices a common social space can be built (at 18). This is Berman’s self-described proceduralist solution to the challenges of pluralism.

Acknowledging that his framework is normative and not analytical, Berman concedes that his cosmopolitan pluralism is not value-free. To accept his proceduralism implies the acceptance of certain values that are intrinsic to the use of procedures that require commitment to “a common set of discursive forms” (at 17). Thus, certain illiberal communities cannot be accepted normatively as they do not accept or cannot be readily accommodated within a cosmopolitan pluralist framework. Chapters 3 and 4 are dedicated to the normative alternatives that attempt to cope with plural normativity. As we stated above, Berman pits his normative approach against sovereigntists on one hand and universalists on the other.

Berman defines sovereigntism as the view that sees the nation-state as the only proper locus of legal normativity. Sovereigntism refers to the specific American debate concerning the influence and impact of international norms on the American legal order. Its protagonists include Justice Scalia,16 John Yoo,17 Jack Goldsmith, and Eric Posner.18 At the core of the sovereigntist position is a rejection of international law and the attempt to diminish its impact or influence on the US. For sovereigntists, “territorially defined nation-states are the only legitimate source of legal norms and therefore [they] reject all other influence” (at 63). Berman chastises the sovereigntist account on analytical grounds because it does not adequately reflect how legal norms evolve and develop (at 63).

To debunk the statist approach, Berman develops a two-pronged criticism. First, drawing on the literature on identity formation in relation to community,19 he argues that the nation-state is not the only source of “community.” Berman follows the view that the idea of a nation, or belonging to a specific community (which is territorially delimited), is neither natural nor predetermined. As with other identities, it is continuously reproduced by certain structures. The feeling of belonging to a specific place is simply a by-product of social and material forces. Thus, it is unwarranted to give precedence to the nation-state over other sorts of communities, as all identities are constantly in flux and constructed. As he puts it:

if communities are based not on fixed attributes such as geographical proximity, shared history, or face-to-face interaction, but instead on symbolic identification and social psychology, then there is no intrinsic reason to privilege nation-state communities over other possible community identifications that people might share (at 80).

The second strand of the argument questioning the efficacy of the sovereigntist accounts refers to democratic legitimacy. According to Berman, those who staunchly defend the nation-state argue that “only territorially defined nation-state communities can legitimately claim to exercise democratically grounded power” (at 92) and want to keep at bay any norm that comes from any other “community.” Berman provides two different replies to that claim. First, he contends that external normativity (that is to say, any norm that has not arisen explicitly from nation-state institutions) does not necessarily imply a loss of democratic legitimacy and, conversely, that it can (in some contexts) enhance the democratic character of the nation-state (at 93). Second, sovereigntists ignore how norms come into being within nation-states. Contrary to their simplistic view, norms are never the product of a single procedure nor are they produced within the confines of a monolithic state. Norms are the product of multiple interactions between diverse communities, actors, or groups. Thus, the “total rejection of foreign, international, or nonstate influence and authority is unlikely to be fully successful in a world of global interaction and cross-border activity” (at 96). Among the examples he provides in making a plausible case against the shortsightedness of sovereigntists arguing in favor of the possibility of normative containment within the nation-state is the Pinochet case in which attempts to prosecute Pinochet in Spain had the effect of reinvigorating his prosecution in Chile. Similarly, the attempts to pro secute members of the Argentine military abroad during the dictatorship helped in achieving their prosecution in Argentina (at 114 et seq.). Normativity, then, according to Berman cannot be confined and delimited in a globalized world.

Berman also opposes universalism. According to Berman, universalism holds “that people are fundamentally the same despite differences in culture and circumstance” (at 129). As he sees it, universalists argue for the erasure of any sort of normative difference between the plurality of existent communities and affiliations worldwide and for the realization of a common set of normative assumptions. For him, this approach is undesirable because it reduces or eliminates diversity: the core purpose of universalism is to eradicate differences and embrace our sameness. This seemingly ignores the fact that everyone has multiple identities that cannot be subsumed under one normative framework. Furthermore, insistence on universality has the unfortunate consequence of disempowering weaker communities as the more powerful can present their interests as promoting a purported “universal normativity.” Additionally, universality stifles normative competition. Because universality represents a monolithic governance model, it misses the point of diversity as experiment. In this reading, diversity is seen as a good in itself due to the fact that, by underwriting diversity, many alternative normative proposals can arise. Thus, diversity is equated with competition, in which different normative solutions vie for attention. Finally, universality is implausible at a practical level as it is highly unlikely that differences can be easily erased. Hence, universalists “would have to acknowledge that normative conflict is at the very least a constant transitional reality that will require more pluralist processes to address” (at 137).

Against this background, Berman presents his own normative proposal, one that tries to straddle the divide between the global and the local (at 150). As we stated earlier, he has dubbed his framework “cosmopolitan pluralist.” It is cosmopolitan because it allows for the recognition of the other without demanding individuals give up their own normative commitments. As he puts it, “[t]he cosmopolitan worldview shifts back and forth from the rooted particularity of personal identity to the global possibility of multiple overlapping communities” (at 148). It is pluralist in that it recognizes the existence of law beyond the paradigm of the nation-state. Normativity is all around and to simply focus on the state is misleading, according to Berman, as it glosses over the wealth of extant normativities. For him, the advantage of this approach is that it “does not require people to be conceptualized as fundamentally identical in order to be brought within the normative system” (at 141). Accordingly, he proposes the establishment of procedures in which difference is managed without imposing any particular identity configuration. Berman argues that this arrangement will be more attractive than sovereigntist or universalist approaches in drawing people into a shared social space in which normativity can be negotiated. This shared social space will allow us to at least perceive the other as an adversary rather than an enemy (at 150). Even if there are moments in which conflicts of values cannot be tamed, these will—according to Berman—be the exception. Thus, law must be oriented towards “an understanding of and sensitivity to the cosmopolitan pluralist reality” (at 321).

In the remainder of the book, Berman extends this framework to a series of mechan isms and procedures for managing hybridity within the cosmopolitan pluralist framework. Chapter 6 is entirely dedicated to showing how different tools help in managing pluralism without eliminating it. Here, Berman reviews tools, such as dialectical legal interactions, margins of appreciation or limited autonomy regimes to show how they would help foster pluralism and manage normative disagreements without erasing diversity. The last part of the book is dedicated to re-envisioning conflict of laws in a hybrid world. There Berman reassesses his approach, but focuses on the traditional elements of conflict-of-laws doctrine, that is, jurisdiction, choice of law, and judgment re cognition. The salient feature of this section of the book is that it is directed to judges, with a view to how they should position themselves within a world of manifold normative communities. They “must consider how best to construct a world system of law . . . and they may develop hybrid norms for resolving multistate disputes” (at 266). Hence he argues for a conscious cosmopolitan pluralist approach in which judges pay attention to non-state communities. Instead of relying on territorialist analysis, judges would need to apply the relevant normative community norms, regardless of their status.

Furthermore, courts should acknowledge their place in a plural and transnational world and accept foreign judgments as part of their embrace of pluralism.

3. Legal pluralism as the new normal

As indicated at the beginning of this essay, legal pluralism has become one of several frameworks open to international lawyers to grapple with the realities of the international and transnational legal order. The unprecedented expansion of international law has generated a renewed questioning of the discipline. This discussion around the identity and coherence of international law, also known as the “fragmentation” debate, has unsurprisingly elicited many responses.20 Of those responses, the one with the greatest appeal for international lawyers has been the constitutionalist.21 The other response—and one that has only lately gained some traction—has been legal pluralism.22

The most surprising aspect of this opening up of international law to legal pluralism is its previous obliviousness to pluralist approaches.23 It is surprising, because international law has always had a pluralist streak within its structures. First, as Ralph Michaels has observed, international law’s conceptualization of its relation to domestic legal orders in terms of dualism and monism resembles pluralist and monist conceptions of law.24 Second, the fact that states have been deemed “sovereign” entailed that they could only bind themselves by agreement. The result has been a plurality of partly conflicting treaties with varying parties. Yet, only since recently legal pluralism is being considered as an option to confront the challenges to international law.

Those who accept pluralism as a fact that cannot be denied and should be thoroughly embraced have adopted different strategies from those advocating the constitutionalist project.25 Drawing on or coming from private international law, scholars have argued that one solution to manage legal pluralism rests on conflict of laws.

Different positions result from this approach. One is the position of Teubner and Fischer-Lescano.26 From their systems-theoretical perspective, the rise of different regimes in different issue-areas simply represents an instantiation of society being differentiated into sub-systems. Each regime merely reproduces its distinctive rationality. Furthermore, due to the inherent structure of the sub-systems, normatively closed, cognitively open, each field will reproduce itself and expand, causing collisions in a struggle of individual regimes, “to make the special rationality govern the whole.”27 Hence, the only possibility of containment is the formation of weak normative compatibility within the context of an inter-regime conflict of laws.28

Less theoretically ambitious is Michaels and Pauwelyn’s defense of conflict of laws to manage fragmentation into specialized regimes.29 Adopting, broadly speaking, a functional approach they argue for an inter-systemic conflict of laws whenever different sub-systems conflict. They contend that conflict of laws allows for the coordination of the different sub-systems.30 Being derived from private international law, conflict of laws involves:

typically rules of domestic law that determine which of several domestic substantive laws should apply (e.g., whether Belgian or German law applies to a fact pattern), according to certain factors, for example, the location of the object in question or the nationality of the parties.31

The fact that conflict of laws manages elements from different systems has led some to argue that the utility of conflict of laws resides in the management of alterity.32 Viewing conflict of laws as a “technique” helps u s to address conflicts that can be viewed as intractable. Under this reading, the “form” of conflict of laws allows for the resolution of conflicts in a manner that permits the treatment of differences without engaging with larger societal conflicts.33

Finally, Nico Krisch adopts a strong normative position.34 He embraces pluralism as a normative stance in opposition to the constitutional project. His normative solution resembles a conflict of laws approach. What he terms “interface norms,” perform a role similar to conflict of laws norms, despite the author’s arguments to the contrary.35 The purpose of those norms is to define how the interactions between orders will take place.36

Undoubtedly, Berman should be seen as part of this group. As we have stated in the prior section, Berman not only accepts pluralism as an empirical fact but as a normative stance. He sees pluralism as a value to be embraced and accepted. Despite the similarities, Berman does not directly deal with the above-mentioned scholars. Rather, he draws on an extensive scholarship that is unrelated to the international law scholarship using conflict of laws as an explicit technique to address norm conflicts.37 It is, however, possible to draw some comparisons. Overall, we notice hardly any meaningful differences between the advocates of a conflict of laws approach. Partly, as just stated, because sometimes they start from similar positions. While Berman’s inclusive notion of communities might bring him into disagreement with the systems theoretic approach by Teubner and Fischer-Lescano the comparison with Nico Krisch, next to Berman the other leading pluralist within international law. Despite the fact that both take different routes in underpinning their cases, it is fair to argue that both share the same normative allegiances. Both are in favor of pluralism as a normative position. Thus, it is surprising to find hardly any engagement between them. Berman simply mentions Krisch as one of only a few scholars in international law who pay attention to the pluralism literature (at 53 fn. 110). And vice-versa, Krisch does not engage much with Berman; although his engagement is more extensive than Berman’s. While Krisch acknowledges Berman is to be regarded a pluralist, he posits that Berman’s “discussion of the forms that may allow for managing the resulting conflicts recalls the constitutionalist instruments for accommodating diversity,” implying that Berman does not fully embrace the radicalism of pluralism. Rather, he is demoted to a sort of institutional pluralist who seeks to tame pluralism through institutions.38 In our view, this is an unfair characterization of Berman’s approach. Berman is actually open in his pluralism and is conscious of the fact that normative pluralism entails that conflicts will not be resolved, that there will be at most “an ongoing normative discourse that has no final resolution” (at 15). Furthermore, Berman is explicitly against universalism, which is similar to the type of constitutionalism that Krisch opposes in his book.39 Quite the opposite, he celebrates the fact that individuals belong to many different normative communities. Certainly, Berman enumerates different mechanisms to manage conflict, but he is explicit that he does not want to “solve” the “problem” of pluralism (at 141). The purpose of describing these mechanisms lies in presenting them “as sites for continuing debates about pluralism, legal conflicts, and mutual accommodation” (at 153). Compare this with Krisch’s “interface norms.” According to Krisch:

interface norms will also reflect other factors, such as the degree of prior formal acceptance of other norms (for example, through ratification), the proximity of values (for example, equivalence or identity in the interpretation of rights), or functional considerations, such as the utility of cooperation in a regime. Yet these should be secondary factors, operating within the autonomy-based framework I have just outlined. If a polity has a strong autonomy pedigree, its norms are due respect even if they are based on distinct values or compliance with them does not have immediate benefits.40

Furthermore, Krisch maintains that “the strength of the respective claims in a pluralist order is not assessed by a single decision maker or from a central vantage point” and that “the quest for coherence—as compatibility, rather than deep uniformity—is part and parcel of the broader quest for a just postnational order.”41 Is this account significantly different from Berman’s? We do not think so. The fact that Krisch reduces the diversity of Berman’s mechanisms to all-encompassing “interface norms” does not detract from the existing similarities between both authors.

4. Neither here nor there: Problems of a cosmopolitan pluralist jurisprudence

There is no doubt that Berman makes a convincing case when describing the current state of global affairs. Legal pluralism is an important fact that cannot be ignored. However, Berman is not content with merely providing an analytical description of existing developments. He wants to offer a normative vision for a postnational world. It is not only an argument about how things are but about how things ought to be organized. For Berman, cosmopolitan pluralism shows the way how best to manage a world of normative plurality. We doubt that Berman’s arguments are sufficient in providing a robust justification for embracing his normative framework.

In our critique we focus on three points that are of central concern to Berman’s position as they underpin the cosmopolitan pluralist framework. First, we argue that contrary to what Berman claims, his distance from liberalism is less pronounced than he imagines. Whilst he does not deny the influence of liberalism, he stresses some distinctive differences. We disagree and argue that he fully embraces if not exudes a liberal position. We emphasize how liberalism informs Berman’s substantive position because everything that follows is affected by this fundamental choice. Secondly, we argue that his cosmopolitan pluralist framework does not taken pluralism seriously. Contrary to what Berman maintains, because his pluralism is qualified by cosmopolitanism, in the end, his alleged penchant for pluralism is diminished due to a set of underlying limitations that cannot be overcome. As a result pluralism loses a good part of its meaning. Thirdly, as a normative approach to the management of pluralism, Berman’s cosmopolitan pluralism does not provide adequate guidance in how to deal with what he calls hybridity. As a result, cosmopolitan pluralism appears somewhat arbitrary in that any solution based on his framework would be almost equally valid.

4.1. Liberalism in disguise

Despite his emphasis on the inescapability of normative pluralism, Berman does not fully embrace pluralism as a normative stance. His reading of pluralism is unmistakably liberal. Thus, he inadvertently undermines the pluralist case that he is so eager to defend. As we see it, Berman’s liberalism greatly undercuts pluralism as a normative stance as it reduces pluralism to a basic substantive core of rights that cannot be infringed. This is a problem that pervades the entire book. Even more problematic is the fact that a justification concerning this limited vision of pluralism is nearly absent; there is a conspicuous lack of argument properly justifying why liberalism should be the normative default position. This is a significant omission insofar as it diminishes the appeal of Berman’s position and greatly limits the type of pluralism(s) deemed acceptable.

One of the few instances where Berman explicitly discusses liberalism is when he introduces his procedural conception of cosmopolitan pluralism. There he acknowledges a certain liberal bias in his thinking (at 17). What is curious is that in the footnote to that statement he immediately rejects the isomorphism between his cosmopolitan pluralism framework and liberalism in general. He concedes that the vision of pluralism he advances shares many attributes with liberalism; nevertheless, by embracing pluralism he intends to give “independent value to dialogue among communities and an importance to community affiliation that is absent from (or at least less central to) liberal theory” (at 17). While we cannot discuss in detail the conceptual problems this view entails, the statement clarifies that Berman talks about a very particular conception of liberalism. Certainly, liberalism rests on the premise that the individual is the basic moral unit, as a bearer of rights. But once one moves beyond that core precept, liberalism contains many variants; indeed, some of them give due importance to the status of groups. There is no shortage of liberal thinkers striding between the individual and the community and their intricate relationship. A good example of such an approach is the work of Will Kymlicka,42 and he is not the only one in this regard.43 In short, there are, indeed, versions of liberalism which, like Berman, give due importance to communities. Our point here is not so much to defend the possibility that liberalism and pluralism can be reconciled. On the contrary, there are strong reasons for thinking that they cannot.44 Rather, our point concerns how Berman constructs his normative framework. We are a bit surprised how he seems to ignore that specific strand of liberalism even though it might have helped his case.45

This omission is also relevant because it affects his argument concerning his alleged departure from liberalism. It becomes unclear what Berman means by claiming that liberalism does not ascribe independent value to dialogue among communities and importance to be part of a community. He posits that liberalism gives “at least” a less central role to the importance of communities (at 17 fn. 37): but how much less? It remains unclear both the extent to which Berman departs from liberalism and whether liberalism, as he sees it, indeed places less importance on communities. Further questions that are left unanswered are: Does the acceptance of communities entail the total elimination of individual rights? Do communities bear rights and duties independently of individuals? Do they have ontological status? How do different communities relate to each other? These are all important questions that would need to be clarified in order to ascertain how the cosmopolitan pluralist framework operates. How communities are conceptualized will affect how to assess them and how to treat them when conflict arises between communities and individuals and between communities. Hence, what type of liberalism Berman adopts has an impact on how he proposes that pluralism be managed.

The most one can glean from Berman is some inchoate understanding of the interrelationship between the community and the individual, but little more. Overall, we are inclined to read Berman as unwilling to discard individual rights. We come to this understanding from the examples provided by him when addressing the impact of illiberal communities on other types of communities. He accepts that when certain norms of one community are deemed outrageous by another community, like stoning in a case of a minor violation, the latter need not yield to the former by giving effect to this norm (at 225). Likewise, he explicitly states that he wants to attribute greater importance to communities, not meaning that communities are the only type of relevant actor; and that he is conscious of the fact that communities are not “monolithic” (at 291–293). Given these considerations, the question that immediately arises is how he differs from an author like Kymlicka? How different is his view from liberalism in general? Not much, in our opinion. He is simply advocating liberalism with a mild penchant for communities.

It is even more surprising that he seems to want to distance himself from liberalism when he embraces cosmopolitanism as one of the two pillars of his framework. Cosmopolitanism, at least in its most accepted form currently, strongly derives from liberalism.46 It is a necessary though insufficient condition on which to ground cosmopolitanism. The basic feature that distinguishes cosmopolitanism from other political theories is that at its core lies “the idea that all human beings, regardless of their political affiliation, do (or at least can) belong to a single community, and that this community should be cultivated.”47 The main point is the equal consideration (respect) of human beings as moral entities. Thus, it seems prima facie reasonable to argue that Berman’s normative approach is buttressed by liberalism, something that he never properly admits and therefore also does not justify.

4.2. The limits of Berman’s pluralism

Needless to say, pluralism suffers most from Berman’s liberalist stance. For liberalism community derives from the individual. Once you accept the moral centrality of the individual, as liberalism and cosmopolitanism do, the community’s value is dependent upon it. The value of and the voice given to the community then is purely instrumental or functional. It becomes a second-order institution which has validity so long as it permits the flourishing of the individual. Likewise, if the moral value of the individual is accepted as foundational, it follows that there are certain individual rights that must be basic and inviolable. Therefore, pluralism, that is to say, the acceptance of multiple normative communities with multiple values, is reduced to a “greater” good. Differently put, pluralism is only acceptable as long as it is reasonable. Rawls comes in through the backdoor.48

In his defense, it could be said that Berman is conscious of the value-laden character of his normative proposal. He is quick to contend that embracing “a cosmopolitan pluralist jurisprudence need not commit one to a worldview free from judgment, where all positions are equivalently embraced” (at 18). Thus, Berman argues:

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 (at 18).

The footnote accompanying that assertion expands his view. There he is quick to distance himself from multiculturalism; he does not want to give deference to all points of view, only to support the elaboration of jurisgenerative structures (at 18 fn. 38). Thus, his framework only “requires” justifying why a decision was not taken (at 290–291). Overall, these comments would seem to undermine our criticism. His pluralism is aimed at the procedural level only; more voices ought to be heard. Nevertheless, even if that is the case, we maintain that Berman is not fully aware of the extent to which his cosmopolitanism undercuts pluralism.

Berman accepts that the turn to proceduralism “necessarily limits the range of pluralism somewhat” insofar as any legal system will always carry some in-built values in order to be functional (at 146). This is an entirely uncontroversial statement. The turn to procedure rather than to substance does not eliminate the confrontation of different worldviews: proceduralism incorporates or presupposes a set of rights in order for the procedures to operate. In any case, Berman argues, his framework “is more likely able to draw participants together into a common social space than territorialist or universalist framework would” (at 146). Now, it is question-begging, based on the argument made above, why certain communities would be willing to participate in this framework.49 If normative communities observe that the diverse procedures presuppose certain values that are alien to them, or if they find them unrepresentative in general, they might decide simply not to take part in those very same procedures. The supposed advantage of pluralism, the acknowledgement and recognition of multiple normative communities with particular worldviews, is never entirely fulfilled. Because cosmopolitan pluralism posits implicitly a normative background which delimits what is deemed acceptable, communities will be stripped of their identity as long as they are within reasonable normative borders. Even more damaging for Berman’s framework, due to the existence of this “pluralism within boundaries,” the supposed advantage of the model, that is, contestation, is to some extent nullified. If the model depends on some predefined rights that cannot be denied, and if certain claims can be rejected on the basis that they violate these rights, then contestation will be restricted, and certain discussions will be muted. Listening to other voices will only be an exercise in window-dressing.

Take the case of sharia courts, which Berman himself raises. He posits that “if the jurisprudential practices of the insular community [sharia courts] are so illiberal or beyond the pale . . . then even the deference that might be owed to a nonstate jurisdiction could be overcome” (at 225). In our view, pluralism thus understood cannot constitute a serious normative position and any possible justification to us appears unconvincing. Berman might reply that the pluralist side of his framework simply makes the case for an open reading of law, allowing for law to be found beyond state structures. In our mind, this conflates the analytical with the normative. The argument for pluralism as an analytical lens through which certain developments taking place can be properly ascertained is one thing; the other is to adopt pluralism as a normative position. The latter requires the acceptance of pluralism beyond a mere broadening of the concept of law. To demand that other voices are taken into consideration, as Berman purports to do, implicitly acknowledges that there is something valuable in different communities. Pluralism for him, then, cannot stop at the level of juridical plurality but must extend to the moral realm as well. Hence, Berman cannot argue that the pluralist side of his framework only affects his definition of law.

This weakening of pluralism is to an extent the reverse of what occurs in Nico Krisch’s take on pluralism. At the risk of oversimplifying, Krisch’s normative approach rests on two moral principles: public autonomy and toleration. As Capps and Machin have noticed, Krisch’s principles in ordering pluralism, contrary to Krisch’s own intention, lead him to a hierarchical position in which the principle of toleration takes precedence over the principle of public autonomy.50 This is not the case with Berman. For him pluralism is acceptable so long as it does not breach certain minimum standards. Illiberal policies can be disregarded. For all these reasons, it is fair to argue that he only embraces pluralism as long as it can be accommodated within the framework of a liberal teleology.

There is an ambivalence in Berman’s proposal on managing hybridity and pluralism. On the one hand, he celebrates pluralism as a normative fact, appreciates the existence of multiple overlapping normative communities and explicitly opposes universalizing tendencies that reduce diversity. On the other hand, Berman wants to produce and create hybrid legal spaces in order to manage legal pluralism. The problem with this stance is that Berman wants to strike a fragile balance between pluralism and normative agreement and it is not obvious that he is able to do so. Let us quote in detail what, for us, is a key passage in Berman’s argument. In response to legal hybridity, Berman suggests:

we might deliberately seek to create or preserve spaces for productive interaction among multiple, overlapping legal systems by developing procedural mechanisms, institutions, and practices that aim to manage, without eliminating, the legal pluralism we see around us. Such mechanisms, institutions, and practices can help mediate conflicts by recognizing that multiple communities may legitimately wish to assert their own 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 decision 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 deference is impossible (at 10).

The spaces Berman relies on indicate that there is a need for a larger normative environment in which pluralism has to be negotiated. Those spaces are situated in a certain normative framework. It is unclear why he argues against the idea of world legal order when some of the mechanisms he supports require the existence of a larger institutional framework. Take his reliance on subsidiarity schemes (at 168 et seq.). Subsidiarity implies that if a lower institutional level can manage a certain matter it should do so. It has priority. This kind of mechanism implies that there is an overall normative order in which the allocation of jurisdiction is negotiated. It requires an agreement, even if a minimal one, on some basic norms in order to manage subsidiarity. A similar argument could be made with respect to the other mechanisms and procedures he discusses. Dialectical legal interactions, margins of appreciation, and limited autonomy regimes can be accommodated within a single legal order. Pluralism could be managed.

The other type of techniques like hybrid participation arrangements or safe harbor agreements point to something different. A hybrid space is the combination of two different places. It might have a specific character, but it is not plural as two normative communities unite to create something distinct. Hence, by mere contact or decision concerning norms, pluralism will necessarily be diminished. This would undermine Berman’s agenda. He seems to be unaware of this possible upshot. And if he is aware of that possibility, it is unclear what his position is on this matter. Once normative communities enter into dialogue, there is surely hybridity but, as a result, homogeneity kicks in. If two normative orders enter into a process of negotiation it is highly possible that a certain norm is imposed or accepted within both communities. Pluralism as it stands diminishes. The way Berman presents his framework seems ambivalent in this regard. He is not clear concerning his view on the techniques he proposes. One thing is to favor a negotiated resolution, but another is the fact that those very same techniques at least diminish pluralism as they create an accepted norm between the normative communities.

4.3. Arbitrariness

The normative shortcomings of Berman’s framework are found not only at the level of internal cogency but at the level of utility as well. Indeed, his normative proposal is defective insofar as it does not provide meaningful guidance on how matters such as norm conflicts should be decided. Berman’s proposal gives rise to two problems that seem to escape him: either any decision that an authority takes is arbitrarily valid or there is a “right” solution—a position that would run into the same argumentative problems that Dworkin’s position suffers from. Let us unpack in detail this problematic feature within the context of choice-of-law.

In the last section of the book, Berman explores the idea of a conflict of laws for a plural normative world. One of the main elements is choice-of-law, that is, the determination of which norm is applicable in a given conflict. After carefully detailing the state of affairs concerning choice-of-law in US scholarship, Berman criticizes all the available positions for a variety of reasons.51 One damning critique that he makes is that the American choice-of-law doctrines have not succeeded in their attempt to provide a procedure to determine which norm should be applied in a given conflict of norms. In the end, the result has been one of arbitrariness (at 267).52 Berman himself accepts a degree of arbitrariness,53 as he does not want to prescribe a “substantive” worldview. Rather, he simply entreats authorities to take into consideration both the most salient community attachment and to accept legal norms coming from non-state origins. When determining which “community” a person belongs to, Berman argues that institutions could look into “the citizenship and residence of the defendant, the amount of activity the defendant conducts in the forum community, and the extent of the defendant’s impact on the community” (at 217). Determination of the relevant community affiliation affects in turn which types of norms have to be considered in a given dispute. In short, authorities using choice-of-law rules must look “to a variety of possible legal sources” and should apply the closest norm to the community affiliation of the parties (at 264). To illustrate the usefulness of his approach he considers actual cases in order to fashion a solution that is sensitive to a cosmopolitan pluralist framework. The problem is that when following Berman, any decision becomes arbitrarily valid.

Berman does not provide any guidelines on determining a norm beyond the recognition “that people and groups hold multiple community affiliations” (at 289) and as a consequence any decision concerning which norm to apply becomes equally plaus ible. There would not be any actual “wrong” decision within such a pluralist cosmopolitan framework. The only requirement that Berman insists on is taking into account which community is the closest to the conflict but this remains entirely unspecified. Hence, there would be no grounds for criticizing a decision as several community affiliations can be considered equally significant.54

If Berman wants to avoid such arbitrariness he would need to argue that even when multiple affiliations are at play it is possible to identify the “right” affiliation. As noted above, how this “right” affiliation would be determined is far from clear. At some point he suggests that he is “less concerned with the particular outcome than with the analytical framework” (at 290)55 and that to identify the relevant community will be challenging as it will be comprised of objective and subjective elements (at 218). However, the manner in which Berman presents his cases indicates that he assumes that there is a “right” solution. Thus, in the case of GlobalSantaFe Corp. v. Globalsantafe.com (at 275–276) as well as in Barcelona.com, Inc. v. Excelentisimo Ayuntamiento de Barcelona (at 285) he manages to identify the “correct” affiliation of the parties in confrontation. The problem is that Berman does not indicate how we should evaluate competing elements when determining the relevant affiliation in a given conflict. Thus it seems that Berman simply relies on an “I know it when I see it” intuition. In the end, Berman finds himself in a conundrum similar to Dworkin in which identification of the “right answer” is epistemically impossible either because we do not have otherworldly knowledge or because norms themselves never lend themselves to a single interpretation.56

The result is the disutility of Berman’s framework as a normative endeavor. Either because there are no proper grounds to ascertain the most substantive normative affiliation and therefore any decision can be considered valid; or because there is implicitly the acceptance that a “right” affiliation will be ascertained but the criteria for discovering them are insufficient beyond a mere intuition.57

4. Conclusion

This review has highlighted what we perceive to be central concerns in the approach to pluralism taken by Berman. The implicit liberalism underpinning Berman’s approach ends up becoming a fateful choice. Taking liberalism as a point of departure, however tacit, yet arguing that different voices need to be part of the conversations seems to us to be a bit of a non-starter. This seems to be “pluralism” in name only as the range of opinions that normative communities can express are ultimately limited. Despite our reservations, we find Berman’s book to be an engaging text and one worth the time of anyone with an interest in the ongoing discussion of the changing nature of law in the transnational context. Berman rightly pinpoints one of the most pressing issues that affects the current normative landscape, that of managing pluralism. The problems concerning the book should not obscure the fact that he is pointing in the right direction.

This essay makes a theoretical argument for reimagining ‘the rule of law’ in light of ‘legal pluralism’. Building on the work of Desmond Manderson and Roderick Macdonald, the essay considers what it means for law’s pluralism—the differences that animate the everyday life of law—to be the very pulse of its rule. In doing so, the essay seeks to open the frame that has been placed around the rule of law in two ways. On one side: to see beyond the law that is made intelligible through institutionalised modes of expression to the law that is made sensible through the richly expressive media of human culture (opening the frame around the ‘law’ that is seen to rule). And on the other side: to see beyond law as a mode of governance to law in the everyday lives of subjects (opening the frame around how this law is seen to ‘rule’). The result is a reimagination of the rule of law as a broadly socio-cultural phenomenon rather than a narrowly legal-institutional arrangement, requiring new research to flesh out the revised concept. The essay is informed by the author’s experience researching the rule of law and legal pluralism in Liberia, with Theodor Adorno as philosophical guide. It proceeds in two steps, beginning with the problem of law’s pluralism, before turning to the problem of law’s rule.


Acknowledgements
With thanks to Jeremy Farrall, Desmond Manderson, Shaun McVeigh, Alain Pottage, Peter Rush, Veronica Taylor, and Valeria Vázquez Guevara for engaging with this paper at various points in its development. A first draft was completed while a doctoral scholar in the School of Regulation and Global Governance (RegNet) at the Australian National University; this draft was completed with the support of an Australian Endeavour Research Fellowship while hosted by the Oñati International Institute for the Sociology of Law.

Documents

One thought on “Essays On Legal Pluralism

Leave a Reply

Your email address will not be published. Required fields are marked *