Berman Book Discussion: Berman Agonistes

[Jeffrey Dunoff holds the Laura H. Carnell Chair at Temple University Law School]

This post is part of our symposium on Dean Schiff Berman’s book Global Legal Pluralism. Other posts can be found in Related Posts below.

Paul Berman has produced a terrific, and terrifically ambitious, work of scholarship.  The book presents a compelling case that the current legal order is marked by multiple and overlapping international, transnational, national, sub-national and non-state normative orders.  Paul argues that relations among these various orders should be managed through a “cosmopolitan pluralist” approach that pays due respect to the interests that various norm-generating communities have in any particular dispute.  The text’s central jurisprudential and normative claim is that cosmopolitan pluralism is superior to its two main rivals, namely (i) universalist approaches that elide important normative differences among diverse communities, and (ii) territorially-based sovereigntist approaches that inappropriately privilege the interests of one community by ignoring the legitimate interests of others.

Although the “pluralist” strand of Paul’s argument promises to decenter the state as law-maker, ironically virtually all of the book’s examples of legal hybridity feature conflicts involving state law, such as competing claims for authority between two or more states (should the IP law of states A or B should govern the registration of internet domain names); between domestic and international institutions (such as the ICJ and US Supreme Court decisions in the Avena/Medellin line of cases); and between public and private actors (such as when religious and state law diverge on family law matters).

Perhaps as a result, GLP devotes very limited attention to analysis of “conflicts” between and among different functional international legal regimes, even though this issue has preoccupied public international lawyers for the better part of a decade (see here and here).  While Paul graciously cites to my work on regime interaction in his discussion of this phenomena (pp. 182-86), I wonder if GLP’s brief analysis does justice to this form of legal hybridity.

First, in a wide variety of fields, including trade, human rights, investment, climate change, and intellectual property, “regime interaction” is where many of the most important and exciting developments are taking place.  Hence, for those who theorize about public international law, the issue of regime interaction is as important and ubiquitous as the issue of international conflicts of law is for private international lawyers.  Thus, as a purely descriptive matter, GLP’s virtual silence with respect to international regime interactions compromises the text’s efforts to provide a comprehensive account of the various forms of legal hybridity that mark the legal landscape.

Second, when public international lawyers consider regime interactions, they tend to employ a different conceptual framework than do choice-of-law or conflicts scholars.  In international regime conflicts, neither sovereigntism nor universalism is a realistic option.  No one looks to a particular state’s law to resolve conflicts between, say, human rights and investment treaties, and the very fact of conflict suggests that no universal solution is on offer.  Hence, for public international lawyers, the main conceptual approaches to these issues are global legal pluralism, international constitutionalism, and global administrative law.  Significantly, the competition among these jurisprudential rivals plays out along different tracks, and implicates different values, than the contest among pluralism, universalism and sovereigntism that GLP highlights.

Thus, while global constitutionalist approaches vary widely, they all promise to bring, if not hierarchy and order, at least a set of coordinating mechanisms to bear when multiple regimes potentially govern an act.  In this sense, constitutionalist approaches are less indeterminate than the pluralism GLP champions.  Moreover, constitutionalist approaches need not suffer from the vice Paul associates with universalism – the imposition of a false uniformity on diverse communities – because constitutional approaches are not simply about the centralization of power, but also limit international law-making powers and allocate prescriptive authority among diverse normative communities.

Global administrative law emphasizes that much modern global governance occurs not in high-profile diplomatic conferences or treaty negotiations, but in less visible “global administrative spaces.” Global administrative law urges that these administrative and regulatory processes be reformed along lines that advance administrative law values, such as transparency, consultation, participation, reasoned decision making, and review. Moreover, global administrative law focuses the accountability and legitimacy of global administrative practices, important dimensions of global governance that GLP does not analyze in detail.

To date, only a handful of scholars have addressed the competition among global legal pluralism, international constitutionalism, and global administrative law (see here; here; and here).  Given the numerous other strengths in the book, there should be little doubt that had Paul devoted attention to the jurisprudential and normative struggle between these approaches to legal hybridity, he would have substantially advanced these debates.  The failure to engage this conceptual contest represents an important, and unfortunate, missed opportunity.

That said, it is always easy – but hardly always fair – to criticize a scholar for not writing the book that a critic wishes he would have written.  Paul Berman has provided a major service in presenting a sophisticated and thought-provoking account of how pluralism operates in a globalized world.  Given its analytic depth and careful analysis, Global Legal Pluralism is a major contribution to ongoing efforts to understand the increasingly complex and confusing contemporary legal order we inhabit.