Berman Book Discussion: Paul Berman on Global Legal Pluralism

[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, Global Legal Pluralism.

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?

A simple model that looks only to territorial delineations among official state-based legal systems is now simply untenable (if it was ever useful to begin with). Thankfully, debates about globalization have moved beyond the polarizing question of whether the nation-state is dying or not. But one does not need to believe in the death of the nation-state to recognize both that physical location can no longer be the sole criterion for conceptualizing legal authority and that nation-states must work within a framework of multiple overlapping jurisdictional assertions by state, international, and even nonstate communities. Each of these types of overlapping jurisdictional assertions creates a potentially hybrid legal space that is not easily eliminated.

In Global Legal Pluralism, I argue that we should be wary of pinning our hopes on legal regimes that rely either on reimposing sovereigntist territorial insularity or on striving for universals. Not only are such strategies sometimes normatively undesirable, but more fundamentally they simply will not be successful in many circumstances. The influence and application of foreign norms or foreign decision-making bodies may be useful and productive, but in any event they are inevitable and cannot be willed away by fiat.

I suggest an alternative response to legal hybridity: we might deliberately seek 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 by recognizing that multiple communities may legitimately wish to assert their norms over a given act or actor, by seeking ways of reconciling competing norms, and by deferring to alternative approaches if possible. And even when a decision maker cannot defer to an alternative norm (because some assertions of norms are repressive, violent, and/or profoundly illiberal), procedures for managing pluralism can at least require an explanation of why deference is impossible.
This framework, I realize, is unlikely to be fully satisfying either to committed nation-state sovereigntists or to committed universalists. Even hard-line pluralists will complain that a view focusing on how official actors respond to hybridity is overly state-centric.

But if a perspective displeases everyone to some extent, it is, for that very reason, also likely to be a perspective that manages hybridity in the only way possible: by forging provisional compromises that fully satisfy no one but may at least generate grudging acquiescence. In a world of multiple norms, such provisional compromises may ultimately be the best we can do.

Ultimately, by studying the many local settings in which the norms of multiple communities – geographical ethnic, national, and epistemic – become operative, scholars can gain a far more nuanced understanding of the international and transnational legal terrain. This is a world in which claims to coercive power, abstract notions of legitimacy, and arguments about legal authority are only part of an ongoing conversation, not the final determining factors.

It is a world where “jurisgenerative” practices proliferate, creating opportunities for contestation and creative adaptation. Though we may not like all the norms being articulated at any given moment, it will do no good to ignore them or insist on their lack of authority. In a hybrid world, law is an ongoing process of articulation, adaptation, rearticulation, absorption, resistance, deployment, and on and on. It is a process that never ends, and scholars and policy makers would do well to study the multiplicity and engage in the conversation, rather than impose a top-down framework that cannot help but distort the astonishing variety on the ground.