The scholarly project of global legal pluralism seems to contain a conundrum at its core. How can any theory of law be focused on pluralism and multiplicity and at the same time claim to be a “global” theory? This conundrum helps explain the criticism global legal pluralism receives from committed pluralists on the one hand and from committed international law triumphalists on the other. The pluralists argue that the normative side of global legal pluralism, by emphasizing procedures and institutions that foster dialogue and interaction, is essentially recapitulating
a universalist liberal legality and therefore is not fundamentally pluralist at all. The triumphalists, in contrast, worry that the descriptive account of law that global legal pluralism provides will undermine hard-won international law norms and institutions or rob those norms and institutions of distinctive authority as hierarchically superior law.
My response, perhaps, is simply to plead “guilty” to both counts. But, of course, there is more to it than that, and so in this Essay I play out these arguments and responses in more detail, using Hans Lindahl’s sprawling and provocative work of global legal pluralism, Authority and the Globalisation of Inclusion and Exclusion, as a jumping-off point. In particular, I will draw on two arguments that are at the core of Lindahl’s work.
First, and relevant to the pluralist objection, Lindahl observes that there is no way to conceptualize a normative legal order, even of the most inclusive sort, that does not somehow exclude as well as include, because there will always be some who resist and refuse to recognize that order. Thus, according to Lindahl, it is impossible to offer any normative account of law, no matter how deferential to pluralism, that will not effectively eliminate some of the pluralism by creating boundaries between what is included and what is excluded. Lindahl’s discussion makes clear that even a purported pluralist approach that rejects a globally uniform set of rules may nevertheless still be a fundamentally universalist approach that is ineradicably and inevitably always in tension with pluralism itself. Indeed, there may be no way out of this conundrum if one wants to posit any sort of normative account of how law or legal institutions ought to be conceptualized.
Second, and relevant to the international law objection, Lindahl offers what he calls the IACA model of law, which he defines as “institutionalized and authoritatively mediated collective action.” This broad definition of law echoes the core insight of legal pluralism: not all that is law or law-like emanates from formal, state-based sources. Lindahl’s approach allows us to speak of emergent global legal orders, whether from above or below. But because it is a descriptive account based on empirical facts on the ground, it robs formal international law of its own asserted superior position. Indeed, this is in some ways a corollary of the point that there is no legal order that includes without excluding. There will always be those who resist: those who see themselves as excluded from a legal order, or those who refuse to be included in that order. These resisters may well create their own emergent legal order. And from the subject position of these resisters, the purportedly global legal order that aims to include them may be deemed illegitimate. Thus, as a fundamental matter, pluralism recognizes that there is no way to sit outside the world and, from an Archimedian point, declare that some law is universally legitimate and some law is not. Rather, the legitimacy or lack of legitimacy of law is always a political argument and a sociological point of contestation.
The response, therefore, to the objections of the pluralists and the triumphalists is fundamentally pragmatic. The concerns of both groups are correct, but there is no way to fully extricate oneself from such concerns. Any institutional design decision or procedural choice or judicial or legislative rule will always and necessarily be “jurispathic,” as Robert Cover would say, thereby choosing one law over another and striking a blow to pluralism. At the same time, any honest descriptive account of law must recognize that in the face of any assertion of law, even the most global and all-encompassing, pluralism is never defeated; what is legitimately law to
one group will be illegitimate to others.
So, what to do in response to these two opposite critiques, both of which are accurate? My answer is to recognize the conundrum and therefore always to be self-conscious about one’s assertions of legitimacy or legality or one’s exercises of hegemonic power. This emphatically does not mean that one should never make such assertions; only that one should be aware of the conundrums that inevitably render such assertions problematic. This is what Lindahl calls “restrained collective self-assertion,” and it is likely the most persuasive way of understanding how authority works in a world where authority is only ever relative, not absolute.
GW Paper Series
GWU Law School Public Law Research Paper No. 2019-25; GWU Legal Studies Research Paper No. 2019-25
Berman, Paul Schiff, Can Global Legal Pluralism Be Both "Global" and "Pluralist"? (2019). 29 Duke J. Comp. & Int'l L. 381 (2019); GWU Law School Public Law Research Paper No. 2019-25; GWU Legal Studies Research Paper No. 2019-25. Available at SSRN: https://ssrn.com/abstract=3385847