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.  (more…)

Berman Book Symposium: Multiscalar Legal Pluralism and Justice

by Hari Osofsky

[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.
(more…)

Berman Book Discussion: Notes From a Fellow Traveler

by Peter Spiro

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 in response, one on the trumping effect of international law (even in a pluralistic system), the other floating questions of community recognition and boundaries. . .

Berman Book Discussion: International Law That Actually Matters

by David Zaring

[David Zaring is Assistant Professor of Legal Studies and Business Ethics at the University of Pennsylvania’s Wharton 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 is rethinking the global legal system with reference to both the plurality and the narrowness of modern community. That is, although we are subjects of a state, international law is driven often by the relationships that have little to do with borders or the usual blood or soil delimitations of state citizenship. These relationships – the linkages that create Berman’s cosmopolitanism – need not be broad ones. Berman’s international law can be a technocratic exercise affected by various small communities of the not always predictable interests that care about it. Big innovations in criminal law might be driven not by state interest, but by the elites and NGOs who believe in internationalizing it, and the reactions of the small number of officials who then must evaluate whether they need to worry about what international criminal law has become. The process of delineating interests that matter can have larger implications when conflicts and the exercise of jurisdiction turn a philosophical exercise by those who care into something on which the world’s litigants may find that their interests turn.

There are many things that can be said about the book, almost all of them laudatory, so I will limit myself to talking about the form of international regulation that I know best, and how I see it fitting into Berman’s cosmopolitan vision. Financial regulation is in many ways a case study for cosmopolitanism. It features cooperation across international boundaries. But it is not traditional international law. And it would be inaccurate to understand what is going on in international financial regulation as a mere clash between the domestic interests of states (though admittedly, political scientists such as David Singer and Abe Newman believe it to be about exactly that). In my view, what international financial regulation tells us is that cooperation among elites and among Haasian-style epistemic communities can create quite a disciplined legal system that, while surely imperfect, is a good representation of international law that actually matters.

In fact, international financial regulation in many ways represents the very cosmopolitanism that Berman praises, where international borders are porous, where communities of fate, be they bankers, regulators or investors, cross boundaries and in many ways have more in common with each other than they do with their fellow citizens in Moline or Leipzig. To be sure, there is more than just a we feeling in international finance. There are standards, created by a committee of agencies, that result in winners and losers. Still, the fact that this sort of international obligation creator exists suggests that instead of the old forms of treaty or customary law there are other forms of international obligations that might better be understood as transnational relationships and governance. They really matter, as political scientists like Bob Keohane and Joseph Nye recognized, and as legal scholars following Anne-Marie Slaughter have gone on to develop.

I think Berman’s vision of cosmopolitanism is one way to think about these institutions. And since I believe that the institutions are drivers of international obligations, Berman’s vision, in taking account of these institutions thus does more for the real world of international law, and the real work of international lawyers than do many other broad visions about how international obligations need to be understood.

Berman Book Discussion: Beyond the Boundaries of Berman’s Global Legal Pluralism

by Janet K Levit

[Janet K. Levit is Dean and Dean John Rogers Endowed Chair at the University of Tulsa College of Law]

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.

In Global Legal Pluralism: A Jurisprudence of Law Beyond Borders, Paul Schiff Berman concludes that we live in a world of multiple norm-generating, but not necessarily territorially-based, communities, some sanctioned by the state and some not; these communities overlap in asserting norms and “adjudicating” law, creating hybrid legal spaces that are often “jurisgenerative.”  Berman argues that in an age of globalization, we should embrace this type of pluralism.  To the extent that the book is prescriptive, Berman looks to law, particularly procedural and conflicts law, to preserve and manage these hybrid legal spaces.

Since 2005, I have joined Berman in multiple symposia and panels, and I have commented on many of the articles and book chapters that are the building blocks for Global Legal Pluralism.  The long “gestation” period paid off – Global Legal Pluralism is a brilliant and eloquent weaving of Berman’s various scholarly threads.  While the book concludes in part that law is “messy,” the book’s argument is quite neat, tight, and logical.  Berman addresses and redresses the dominant critiques lobbed at his work over the years, showcases agility with interdisciplinary research, and demonstrates the value of legal scholarship that does not end with heavy-handed prescriptions.  Like all books of this breadth, there is room for critique.  Instead, in this post, I offer some broader thoughts on ways to push Berman’s outstanding work beyond its own boundaries and borders. (more…)

Berman Book Discussion: Berman Agonistes

by Jeffrey Dunoff

[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.

(more…)

Berman Book Discussion: Paul Berman on Global Legal Pluralism

by Paul Berman

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

Thanks to Peter and all the other bloggers for providing an opportunity to explore the ideas in my recent book.

I start from the premise that we live in a world of legal pluralism, where a single act or actor is potentially regulated by multiple legal or quasi-legal regimes imposed by state, substate, transnational, supranational, and nonstate communities. Yet law often operates based on a convenient fiction that nation-states exist in autonomous, territorially distinct, spheres and that activities therefore fall under the legal jurisdiction of only one regime at a time. Traditional legal rules have tied jurisdiction to territory: a state could exercise complete authority within its territorial borders and no authority beyond it. In the twentieth century, such rules were loosened, but territorial location remains the principal touchstone for assigning legal authority. If one could spatially ground a dispute, one could most likely determine the legal rule that would apply.

But consider such a system in today’s world. Should the U.S. government be able to sidestep the U.S. Constitution when it houses prisoners in “offshore” detention facilities in Guantánamo Bay or elsewhere around the world? Should spatially distant corporations that create serious local harms be able to escape local legal regulation simply because they are not physically located in the jurisdiction? When the U.S. government seeks to shut down the computer of a hacker located in Russia, does the virus transmitted constitute an act of war or a violation of Russia’s sovereignty? How can we best understand the complex relationships among international, regional, national, and subnational legal systems? Does it make sense to think that satellite transmissions, online interactions, and complex financial transactions have any territorial locus at all? And in a world where nonstate actors such as industry standard-setting bodies, nongovernmental organizations, religious institutions, ethnic groups, terrorist networks, and others exert significant normative pull, can we build a sufficiently capacious understanding of the very idea of jurisdiction to address the incredible array of overlapping authorities that are our daily reality? . . .

Berman Book Discussion: Paul Berman’s “Global Legal Pluralism”

by Peter Spiro

We’re delighted this week to host a discussion of Paul Schiff Berman’s “Global Legal Pluralism: A Jurisprudence of Law Beyond Borders” (Cambridge University Press). Paul is the Dean and Robert Kramer Research Professor of Law at George Washington University Law School. This is a rich and broadly argued book (Paul confesses to being a “lumper,” I think in the best sense). From the jacket:

We live in a world of legal pluralism, where a single act or actor is potentially regulated by multiple legal or quasi-legal regimes imposed by state, substate, transnational, supranational and nonstate communities. Navigating these spheres of complex overlapping legal authority is confusing and we cannot expect territorial borders to solve all these problems. At the same time, those hoping to create one universal set of legal rules are also likely to be disappointed by the sheer variety of human communities and interests. Instead, we need an alternative jurisprudence, one that seeks to create or preserve spaces for productive interaction among multiple, overlapping legal systems by developing procedural mechanisms, institutions and practices that aim to manage, without eliminating, the legal pluralism we see around us. Global Legal Pluralism provides a broad synthesis across a variety of legal doctrines and academic disciplines and offers a novel conceptualization of law and globalization.

We’ll be joined for the roundtable by Jeff Dunoff (Temple Law); Janet Levit (Tulsa Law); Hari Osofsky (Minnesota Law); and David Zaring (Wharton), along with members of the regular OJ team. We’ll look forward to a stimulating discussion of Paul’s important new book.