Normative and Legal Pluralism: A Global Perspective

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THE SEVENTH ANNUAL HERBERT L. BERNSTEIN MEMORIAL LECTURE IN INTERNATIONAL AND COMPARATIVE LAW

AS HELD AT DUKE UNIVERSITY SCHOOL OF LAW APRIL 7, 2009

ABSTRACT

This lecture sets out to demystify the topic of legal pluralism by examining the relationship between legal pluralism, normative pluralism, and general normative theory from a global perspective. The central theme is that treating legal pluralism as a species of normative pluralism decenters the state, links legal pluralism to a rich body of literature, and helps to show that some of the central puzzlements surrounding the topic can usefully be viewed as much broader issues in the general theory of norms and legal theory. A second theme is that so-called "global legal pluralism" is in several respects qualitatively different from the older anthropological and socio-legal accounts of legal pluralism and is largely based on a different set of concerns.

After a brief Introduction, Part I considers normative pluralism. It explores the ambiguity of "pluralism" and some themes in general normative theory. Part II introduces the heritage of literature on legal pluralism. It presents an ideal type of social fact legal pluralism to which much, but by no means all, of the mainstream literature approximates. Some brief case studies illustrate some distinctions that are increasingly under attack. Part II suggests that social fact pluralism has achieved much in raising awareness of non-state normative orders, but provides little guidance on issues of state policy and institutional design. Part III considers the implications of adopting a global perspective in this context. It questions how far social fact legal pluralism is helpful in addressing a wide range of concerns raised by "globalization" and argues that the radically ambiguous idea of "global legal pluralism" is being applied to such a variety of phenomena and concerns as to be virtually meaningless.

INTRODUCTION

It is an honor and a pleasure to give this lecture in memory of so well-loved and respected a comparative lawyer. I feel a bit of a fraud, for I am not a comparatist by specialization, but rather by situation, as all academic lawyers are today. I have chosen my topic because legal pluralism has in the last ten years or so become a central topic in the study of law generally, including jurisprudence, comparative law, and public international law. This is largely, but not entirely, in response to so-called "globalization." Yet this expansion of interest threatens to sow the seeds of confusion.

The excitement and confusion about legal pluralism is captured by a leading scholar of the subject, Gad Barzilai:

   Legal pluralism has been one of the most salient and influential
   academic trends in law and society scholarship since the 1970s. It
   primarily articulates detachment from legal centralism revolving
   around state law, criticism of the exclusiveness of state law,
   decentralization of court-centered judicial studies, exploration of
   non-state legal orders, unveiling of informal socio-legal
   practices, and an understanding of law as a multi-centered field
   that deals with the convergence of norms, localities, states,
   global sites, and practices. Scholarship of legal pluralism has
   underscored the ways in which various identities and traditions
   have decentralized state law and offered non-state legal orders.
   (1)

A considerable amount of controversy has surrounded the topic: some jurists reject the very term "legal pluralism" as an oxymoron, referring "to legal pluralists" as if they are a strange sect; (2) some see it as a site for rerunning long-standing debates about the concept of law and positivism versus non-positivism; many different answers are given to the question: "plurality of what?"; some associate the idea with post-modernism; and some even talk of a new "global legal pluralism. …