16 Apr Berman on Global Legal Pluralism
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 because human activity and legal norms inevitably flow across such borders. 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. Such mechanisms, institutions, and practices can help mediate conflicts, and we may find that the added norms, viewpoints, and participants produce better decision making, better adherence to those decisions by participants and non-participants alike, and ultimately better real-world outcomes. 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.
As the abstract suggests, the great thing about the book is that Berman tries to steer a middle course between the sovereigntists and the universalists. Berman effectively argues that normative positions such as territorial sovereignty or universalism have no hope of triumphing in the hybrid world of overlapping legal regimes. Those who would embrace territorial sovereignty cannot hope for their position to prevail in a world of interdependence with permeable borders, multiple communities, and overlapping jurisdictions. By contrast, those who embrace universalism ignore the normative differences that cut across communities and thereby undermine their position.
Cosmopolitan pluralism is Berman’s solution to the “messy reality of law on the ground.” A cosmopolitan pluralist recognizes the role of all legal pronouncements as fundamentally rhetorical, and treats legitimacy not as a formal question but as statement that will or will not prove true over time. “[L]egitmacy becomes a sociological question about changes of legal consciousness,” he concludes, “and a cosmopolitan pluralist legal system seeks to keep those multiple voices in dialogue with each other to the extent possible.”
The book presents a wonderful addition to the literature on competing norms and will be a must read for anyone interested in navigating questions of legal pluralism in the age of globalization.