GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2018

Status

Accepted

Abstract

Legal pluralists have long recognized that societies consist of such multiple overlapping normativecommunities. These communities are sometimes state based but sometimes not, and they are sometimes formal, official, and governmental, but again sometimes they are not. Scholars studying interactions among these multiple communities have often used the term “legal pluralism” to describe the inevitable intermingling of these normative systems.

In recent decades, a new application of pluralist insights has emerged in the international and transnational realm. This new legal pluralism research was born in the decades following the collapse of the bipolar Cold War order in 1989. During this period, it became clear that a single-minded focus on state-to-state relations or universal overarching norms was inadequate to describe the reality of the emerging global legal system, with its web of jurisdictional assertions by state, international, and non-state normative communities.

Traditionally, legal pluralism has been primarily a descriptive enterprise. Anthropologists, historians, and other social scientists have generally seen legal pluralism as simply a reality, neither good nor bad, neither desirable nor undesirable. Instead, they have defined their task principally as an exercise in thick description: cataloging the inevitable hybridity that arises when two legal or quasi-legal systems occupy the same social space, as well as the resulting strategic interactions that occur among those navigating the multiple regimes.

This is not to say, of course, that legal pluralism as a scholarly project was (or ever could be) devoid of implicit values and normative biases. Indeed, one might say that two strong normative undercurrents have always animated legal pluralism. First, legal pluralism was an attack on legal centralism, the idea that law was the sole province of the state and its formal institutions. Pluralists sought to undermine the assumption of state power, discovering agency and subversive opportunities among those presumed to be marginalized. As such, legal pluralism was a way of critiquing the power of the state and even at times celebrating resistance to state hegemony. Second, legal pluralism often had an implicit pro-local bias, particularly in its emphasis on forms of resistance to colonial state hegemony. Perhaps echoing cultural anthropology’s more general celebration of the local, legal pluralists tended to make the local, the indigenous, and the anti-colonial the heroes of the narrative.

Nevertheless, even if we grant these implicit value preferences, legal pluralists, following most social scientists, generally have eschewed the sorts of strong normative arguments law professors routinely make: because of such-and-such research, we should now change legal or governmental systems in these particular ways. And there are surely virtues in focusing on thick description rather than normative prescription. Among other things, the constant pressure to produce “useful” work that will appeal to judges and policy-makers often forces legal academics into overly strong normative claims based on little evidence or an incomplete understanding of the complexity at work in social forces. One yearns for more effort to comprehend reality before switching to how best to reform it.

And yet in this Essay, I conduct a thought experiment. What might it mean for legal pluralists to play out some of the normative implications of their work for theories of law, policy, and governmental institutional design? Do legal pluralists have something distinctive to add to contemporary law and governance debates? Or would asking such questions ultimately undermine the core insights of legal pluralism by committing scholars to particular modes of governance hierarchy? And if it did, is that a trade-off we can bear as scholars in exchange for policy relevance? And even if we were willing to make such a trade-off, is a legal pluralist position inherently in tension with any effort at systemic reform because legal pluralism recognizes that any system will always be partial, contested, and contingent? Or might systemic reform that is partial, contested, and contingent nevertheless be better than no reform at all?

Most fundamentally, I believe legal pluralists might be able to mount a clear-throated defense of legal rules and governance institutions that foster interaction and dialogue among those multiple norm-generating communities rather than dissolving diversity either into universalism, on the one hand, or tribalism, on the other. And we need that defense right now, if only to name the values of diversity, dialogue, and communication across difference that are at the core of the world we might be on the brink of losing.

GW Paper Series

GWU Law School Public Law Research Paper No. 2018-76; GWU Legal Studies Research Paper No. 2018-76

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