Berman Book Discussion: Notes From a Fellow Traveler

by Peter Spiro

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.

This is a great book, and I am almost completely on board with the orientation here.  Paul is right on the money in navigating between the territorial sovereigntists on the one hand and the cosmopolitan universalists on the other. The critique of the universalists is especially key insofar as it persuasively rebuts a standard sovereigntist fallacy (along the lines of, the sovereign state may be imperfect, but it sure beats “world government”). The case studies — mostly involving state action and judicial action in particular — are less appealing to those of us with new governance instincts, but Paul is careful to qualify his project, or at least this part of his project, as focusing on the still vigorous pull of the nation-state. The theory works with non-state action as well (as Paul highlights along the way). International law scholars of all descriptions will find a lot to work with here.

I have two broad thoughts. The first is what I see as the unavoidable fact that global legal pluralism will in some cases be protective of non-progressive practices.  One context: empowering subnational jurisdictions.  The book highlights the example of US state and local governments going after bad-guy Sudan while the federal government kept the gloves on (a devolution that was later ratified by Congress).  But states can outflank the feds on the the side of the political spectrum, too: see SB 1070 (mentioned in the book only in passing). There isn’t a very principled way to validate one and not the other, at least not on a procedural basis. This will also be the case with nonstate communities of an illiberal description. This doesn’t undermine the theory (there is always some bad with good), but it might be acknowledged that legal pluralism doesn’t always cough up progressive results.

That said, international law may supply a sort of liberal rights-oriented backstop.  International law becomes the legal umbrella against which to measure community practices.  At some point, maybe one has to be something of a “hardline international law triumphalist.”  The book seems to situate international law as just another source of community norms, not one that is necessarily privileged.  (So, international law is more like foreign law in a non-hierarchical matrix.)  I think international law has to be elevated over other forms by way of constraining community practices that go too far. In that respect international law must sometimes be “jurispathic.” I don’t think Paul would disagree – more a question of emphasis.

The other observation relates to community boundaries and community formation. To the extent that community becomes the vehicle for establishing and enforcing norms, community recognition and membership take on a signal importance.  In the old state-based system, rules relating to secession fall into this category.  I wonder what cosmopolitan pluralism has to say about that — in particular, what would suffice to defeat the clearly-expressed preference of a territorial subdivision to split off from an existing state.  In the new world, the question extends to, which non-state communities are entitled to some sort of norm autonomy?  (Like: Is Scientology a religion or a cult?) To put it in the juriscentric terms of the book, at which point should courts recognize the validity of a community for purposes of the choice-of-law question? I don’t know the answer, and perhaps it’s more a matter of organic, ground-up evolution than of formal rules and process. But it seems like a question worth asking.

Finally, in Paul’s frame questions of community membership should also be elevated (and less straightforward). I like Paul’s subthesis that the exercise of jurisdiction by a community is expressive of membership. The book uses the example of Salman Rushdie, who found himself in the crosshairs of a fatwah precisely because he was a Muslim. (Along similar lines, only citizens can be charged with treason.) But at some point along the margins, that imposition of membership will be unjust. Similar questions will arise at the front end relating to unjust exclusion, at the same time that communities need some level of autonomy in membership decisions. The case of Native American tribes presents an interesting case: should they be allowed to discriminate on the basis of bloodline? Should the federal government be able to trump exclusions based on race?

So the challenge is to extend the foundations of the theory in other necessary directions.  In the meantime, Global Legal Pluralism gives us a new way to think about law in the new global mix.

http://opiniojuris.org/2012/06/19/berman-book-discussion-notes-from-a-fellow-traveler/

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