The idea of legal pluralism is that law must always negotiate situations when multiple communities and legal authorities seek to regulate the same act or actor. These overlapping jurisdictional assertions may occur because of federalism, or because disputes often cross territorial borders, or because of complicated inter-jurisdictional arrangements, as with Indian tribes in the United States. In all of these situations, judges must develop strategies for determining how best to balance the competing claims of multiple communities: does the law of one community triumph, does the law of the other community triumph, or is there some hybrid solution available?
This Essay surveys some of Justice Ruth Bader Ginsburg’s key writings on the interaction of legal systems, both in law journals and in judicial opinions. This analysis reveals a consistent theme in Ginsburg’s jurisprudence. Across a variety of substantive legal areas, Ginsburg often chooses a path that provides maximum play among the legal systems at issue. Beginning with her earliest scholarly writings, she has tended to oppose doctrines allowing one legal system to block another from adjudicating a dispute, and throughout her later career Ginsburg likewise tends to reject bright-line rules that choose one legal system over another. Instead, she often seems to prefer procedural arrangements that seek accommodation and flexibility in order to ensure that multiple legal systems and a variety of norms and processes are respected. These principles also carry over to Ginsburg’s views about international and transnational law. A committed internationalist, Ginsburg advocates the importance of seeking wisdom from others. This non-dogmatic, deferential approach to plural legal systems characterizes much of her jurisprudence on inter-systemic conflicts, though interestingly such deference does not always apply with as much force in Ginsburg’s opinions concerning tribal communities.
By taking stock of Ginsburg’s navigation of legal pluralism in a set of representative writings, we can better theorize her contribution to a jurisprudential approach that seeks ongoing negotiation in an interlocking world of multiple jurisdictions and multiple legal norms. Just as important, this discussion provides an initial case study for thinking more broadly about possible judicial responses to the reality of legal pluralism.
GW Paper Series
GWU Law School Public Law Research Paper No. 2015-19; GWU Legal Studies Research Paper No. 2015-19
Berman, Paul Schiff, Ruth Bader Ginsburg and the Interaction of Legal Systems (2015). The Legacy of Ruth Bader Ginsburg, Scott Dodson, ed., Cambridge Univ. Press, 2015; GWU Law School Public Law Research Paper No. 2015-19; GWU Legal Studies Research Paper No. 2015-19. Available at SSRN:http://ssrn.com/abstract=2605824