Berman Book Symposium: Multiscalar Legal Pluralism and Justice

[Hari M. Osofsky is Associate Professor and 2011 Lampert Fesler Research Fellow, University of Minnesota Law School and Associate Director of Law, Geography & Environment, Consortium on Law and Values in Health, Environment & the Life Sciences]

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.

It is an honor and a pleasure to have the opportunity to participate in this conversation about Paul Berman’s exciting new book, “Global Legal Pluralism: A Jurisprudence of Law Beyond Borders.”  Like many of the commentators, I have had the privilege of watching this project evolve over several years.  The book is a tremendous contribution which reflects Paul’s command of numerous interdisciplinary literatures and substantive areas of law.  It makes an articulate and compelling case for taking a cosmopolitan and pluralist approach to law in an era of globalization.

My two primary interventions in this brief blog are not so much critiques of the book, as suggestions for directions Paul and others could go from here to explore these issues in additional ways.  First, as Paul and I have discussed for many years, I think his geographical analysis might be developed further by focusing on issues of scale more deeply.  Early on, I queried whether the book should be called “multiscalar legal pluralism” rather than “global legal pluralism.”  I wondered whether Paul could fully capture the interactions and institutional hybridity through focusing on the “global” or “international” levels.

Paul has done much to address that concern in the ways in which he has incorporated multiple levels of government, even using the term “multiscalar” in the context of discussing climate change federalism.  However, I would be excited to see him go even deeper in future explorations of scale in this context.  Specifically, I wonder what “global” or “international” means in a cosmopolitan and pluralist world.  To the extent that one accepts geographer Kevin Cox’s theory that each level is constituted by core interactions at that level and by interactions across levels (a theory that I often draw from in my own work), multiple visions of the international scale might result.  These possibilities for pluralism in defining global scale might impact the hybrid forms that Paul explores so thoughtfully.

Second, I continue to worry about the pervasive inequality in formal and informal legal orderings. The book demonstrates an awareness of this issue, and makes clear that it does not prescribe a particular normative or structural outcome in its analysis of possibilities for hybridity.  Instead, it focuses on making a case for how law could embrace pluralism effectively.

While neutrality to outcome is certainly possible in structuring institutions, those choices often matter in how well those with less wealth and power can make their voices heard in the legal system.   For example, hybrid institutions can be structured to ensure meaningful stakeholder input, as regional citizens advisory councils in the aftermath of the Exxon Valdez oil spill have attempted to do.  But often both formal international legal treaty negotiations and more informal fora create a structural equality that ends up privileging countries wealthy enough to send more representatives or transnational companies wielding influence.  I am interested in how different approaches to cosmopolitan pluralism might exacerbate or ameliorate these issues.

In the final analysis, the many ways in which I and other commentators have engaged this book reinforce its contribution.  While Paul or others may build on this analysis in the future and take it in additional directions, this book provides an important foundation for such work.  Through its ambitious, “lumpy” approach, the book shows the pervasive relevance of its inquiry and the possibilities for envisioning “jurisgenerative” approaches to law.