[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.
