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

[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.

Private and Corporate Actors

In earlier versions of Global Legal Pluralism, Berman tended to give mere lip service to non-state lawmaking communities.  I commend Berman for responding to this critique and incorporating non-state lawmaking examples, primarily ethnic and religious communities, throughout the book. However, he largely shies away from private, corporate actors as significant players in hybrid legal spaces.  Multinational corporations, through private contract, through exerting pressure on the state, through trade association norms, and through sheer market strength, play a critical role in creating, solidifying, translating, and, of course, undermining norms developed in competing or complementary lawmaking communities. Yet, many international legal scholars, particularly those with a pluralist bent, appear hesitant to endow corporate actors with normative import, resulting in an incomplete portrait of these hybrid spaces.

Native American Law

Native American law, particularly the interaction between tribal, state, federal, and international law, offers a fertile example of a vibrantly hybrid legal space.  A perusal of a multitude of tribal license plates in our parking lot is a daily reminder that our students belong to multiple communities.   Tribal courts enforce tribal law, from tribal constitution to commercial code, and local state courts grapple with questions of overlapping jurisdiction and recognition of judgments.  From disputes over choice of (tribal) law clauses in commercial contracts to multi-state and multi-tribal compact agreements over the allocation of increasingly scarce water resources to local resistance to the building of a casino on land that is at once within city limits and deemed tribal property, our law school graduates practice in an incredibly hybrid legal space.  Yet, international legal scholars, even those like Berman who are predisposed to pluralism, rarely engage Native American law and/or scholars.

Domestic Incorporation of International Legal Norms

At several points in Global Legal Pluralism, Berman discusses ways that formal state law ingests international norms.  There is room to dig much deeper. For instance, in Berman’s discussion of the Argentine amnesty (reversal) case, he argues that the Argentine Supreme Court’s citing of an Inter-American Court of Human Rights decision, a decision “without any literal constraining effect,” reveals the domestic strength of non-state norms.  The nuance that Berman overlooks here is that Argentina’s 1994 constitution actually incorporates, by explicit reference, the American Convention on Human Rights, arguably endowing Inter-American Court decisions with domestic constitutional standing.^[1] Indeed, many South American countries granted international and human rights law with constitutional stature in the wake of military regime human right abuses of the late 70s and early 80s. Yet we often relegate such comparative constitutional work to the comparativists, leaving it on the sidelines of this pluralist project.  Likewise, there is room for further exploration of the way in which sub-state “sovereigns” (i.e., states within a federal system) incorporate international norms.^[2] And, I believe that our vast web of administrative rules and rulemakings offers countless unearthed examples of international norms seeping into our domestic legal system.

Berman readily acknowledges that Global Legal Pluralism is a springboard for further in-depth study, and this post is simply intended to offer thoughts regarding some possible directions.  We should not underestimate the enormity and methodological difficulties of this project.   Berman concedes from the outset that most of the examples in his book involve “official state-based formal contexts,” primarily “courts or other quasi-judicial bodies,” because of their “practical availability”; at the same time, he recognizes that the prevalence of these examples is problematic given the normative role that informal and non-state-based rules purportedly play in his pluralist analysis.   As someone who has dabbled with non-state, informal lawmaking in scholarship, I caution how methodologically difficult and time consuming such research can be, particularly without formal training in social science techniques.    Research is frequently field-based, rooted in personal relationships and interviews.  Document discovery – if documents actually exist – often feels like a haphazard treasure hunt.  Much that is normatively relevant occurs under the radar of the press, Internet, or Westlaw.  To do this work well will require patience, a set of skills outside the bounds of traditional legal training, and collaboration with colleagues from other disciplines.

[1] For further discussion, see Levit, Constitutionalization of Human Rights in Argentina, 37 Colum. J. Transnat’l L. 281 (1999)).

[2] See e.g., Levit, Bottom-Up Lawmaking Through a Pluralist Lens, 57 Emory L.J. 1147 (2008) (discussing state adoption of revised UCC Article 5 (Letters of Credit) which  in turn imports the ICC Banking Commission’s Uniform Customs and Practices).