Berman Book Symposium: Closing Post by Dean Paul Schiff Berman

by Paul Berman

[Paul Schiff Berman is Dean and Robert Kramer Research Professor at George Washington University Law School.]

I want to thank all the participants in this online symposium both for their extraordinarily thoughtful comments on my book and for their many constructive interventions through the years as I have been developing these ideas.  I am blessed to be part of a truly supportive academic community, and these posts exemplify all that can be good about thoughtful academic discourse built on dialogue rather than one-upsmanship.  Such fruitful academic discourse should not be so rare, but that only means we must be especially grateful when true community is instantiated before our eyes.

As to the individual comments, I won’t respond to all of them.  Certainly, there are many aspects of our plural world that I wish were better reflected in the book.  As Janet Levit points out, I do not have nearly enough examples from the world of non-state law-making (mostly because they are more difficult to find and document).  Likewise, Jeff Dunoff is surely right that regime interaction is an area that deserves greater attention than I paid to it (and his work usefully provides such attention).  The same is true of the international financial regulation described by David Zaring.  Finally, Peter Spiro correctly identifies the difficulties inherent in deciding when a community is well-enough defined to justify recognition.  All of these are matters that further work will need to flesh out.

So, here let me confine my remarks to three quick responses and one small quibble.  First, I agree with Hari Osofsky that my book concerns interactions that are more multiscalar than global, but only if by global one means a single overarching global system.  I meant global as opposed to international, so I did not think I was implying such a single unified system, but if that’s what people think of when they read the word “global,” then I certainly would prefer a different term.

Second, Osofsky also worries about how disparities of power play out in pluralist institutional structures.  My answer is that disparities of power always skew any system, and there is probably no way of avoiding that fact.  All I would claim is that sometimes having multiple ports of entry means that voices that are unheard in one system may figure out a way to be heard in a different system.  Accordingly, while powerful repeat players might often have an advantage, that will not always be so because an alternative forum may provide the powerless with an alternative opportunity to speak.

Third, Peter Spiro is precisely right that pluralist structures are not all sweetness and light.  Accordingly, we may find it difficult to celebrate, say, local voice on environmental standards without also accepting local voice on immigration enforcement as well.  Of course, we may resist individual substantive judgments on political or jurisprudential grounds.  But we will not be able to say things like “the state has no legitimate role in immigration matters.”

Finally, the quibble.  Janet Levit notes that Argentina’s Constitution incorporates the American Convention on Human Rights, thereby providing a domestic legal basis for the Argentine Supreme Court to reverse the granting of amnesty to soldiers who committed human rights abuses.  This is quite true, but I think it supports my view that a decision of the Inter-American Court of Human Rights, which does not itself carry independent enforcement power, can nevertheless have real impact.

Again, I thank all the participants for engaging with my ideas.  I must confess that when I write I find it difficult to believe that anyone else will ever read my words, let alone deem them worthy of such careful scholarly response.  I am therefore both amazed and humbled that this outstanding collection of scholars has seen fit to comment on my book in such a nuanced and thoughtful way.  My heartiest thanks to all.

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