Seong-Hak Kim on Legal Pluralism That Wasn't: State and the Plurality of Law in Late Medieval and Early Modern Europe

Marie Seong-Hak Kim, Käte Hamburger Kolleg "Einheit und Vielfalt im Recht", has published Legal Pluralism That Wasn't: State and the Plurality of Law in Late Medieval and Early Modern Europe. Legaal Hre is the abstract,

Legal pluralism has seemingly become a new orthodoxy. Its core proposition is that law has no privileged relationship with the state. Students of legal history have reason for paying attention, as legal pluralism, a corollary of colonialism, has come to project back onto European history its cultural and social-scientific paradigm and arrogate to itself the role of explaining the evolution of normative orders in the continent's past. This article argues that applying to European history a theory premised on a contest between legal monism and pluralism brings more confusion than clarity. The difference between historically grounded legal pluralism and the contemporary theory of legal pluralism revolves around the question of whether multiple legal orders existed as part of state law or state law was merely one among many legal orders. In late medieval and early modern Europe, law was foremost equated with jurisdictional power, that is, authority to rule. Various kinds of laws, including custom, Roman law, church law, and legislation, operated in a plurality of practices within the state-centered hierarchy, and it was on this framework of state law pluralism that the European countries, while remaining under the doctrinal unity of the jus commune, each followed a discrete path of legal development shaped by political and institutional changes. The history of Europe provides little support for the theory that an imposed Romanitas or state sovereignty displaced and distorted good old customary law. Modern legal pluralist views may be in need of reconsideration not just in light of what was happening in late medieval and early modern Europe but also in terms of how Europe's ideas of legal order spread to the colonies in the late nineteenth century. Recent debates on legal pluralism serve as a reminder that history is distinct from an anemic version of the more theoretical social sciences. Still, the binary of unity and plurality in law can offer an unaccustomed yet useful direction in approaching the legal past.

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Dane on Robert Cover and Legal Pluralism @perrydane

Perry Dane, Rutgers, the State University of New Jersey, Rutgers Law School, has published Robert Cover and Legal Pluralism. Here is the abstract.

This short talk focuses on three aspects of Robert Cover's brand of legal pluralism: First, Cover's account of legal pluralism went beyond the simple recognition of non-state legal orders; just as important for him was the claim that non-state communities could generate and defend distinct readings of the state's own legal order. Second, Cover's jurisprudence assigned a central role to state violence and non-state communities' resistance. Violence and resistance were vital to his account not only because they are the way of the world but because they help render legal pluralism real. Third, Cover's well-known focus on the narrative dimension of the law was intertwined with his famous image of the law as a bridge between the present world and the ideal. Both the real and the ideal are narratives – stories – and that law is, in a sense, the feat of engineering that connects these two separated narratives.

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Palombella on Interlegality and Justice

Gianluigi Palombella, Scuola Superiore Sant'Anna di Pisa; University of Parma, has published Interlegality and Justice. Here is the abstract.

This articles suggests a peculiar perspective on law., that is, "interlegality". Amidst the plurality of orders, regimes, legal systems, and the overlapping of legalities, hardly arbitrated by hierarchy, are the system-based paradigms, be they monist, dualist or pluralist, still capable of reflecting the present complexity? The main concern triggering an inter-legality approach is not the coexistence among legalities as they create parallel worlds of normativity (that of global trade, of world health, of state welfare, of regional security, and so forth) but the resilience of the material interconnectedness that comes to affect the nature and functioning of legality. Without giving into the mainstream temptation of drawing a global constitutional promise, interlegality attempts at changing the epistemic perspective on law. To do so, it draws some theoretical frame that not only has to avoid the monist-dualist alternatives, but also relocates the achievements of legal pluralism and steps beyond it.

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Gebeye on Legal Theory in Africa: Between Legal Centralism and Legal Pluralism

Berihun Adugna Gebeye, Central European University (CEU), Department of Legal Studies, is publishing Legal Theory in Africa: Between Legal Centralism and Legal Pluralism in the Queen Mary Law Journal (2017). Here is the abstract.

The African legal universe is difficult to capture through the lens of legal centralism and legal pluralism. While the former excludes the pre-colonial African legal experience, the latter blurs the post-colonial legal dynamics. By employing Joseph Raz’s theory of legal system, this paper argues that there have been centralized legal systems and plural laws in Africa. Customary legal systems, colonial legal systems and constitutional legal systems have existed in pre-colonial, colonial and post-colonial Africa respectively. Plural laws such as diverse customary and religious laws, imperial colonial laws, and statutory laws constituted these legal systems in different time and space. Hence, the quest for African legal theory rests in between legal centralism and legal pluralism.

The full text is not available for download.

Michaels on Law and Recognition: Toward a Relational Concept of Law

Ralf Michaels, Duke University School of Law, is publishing Law and Recognition — Towards a Relational Concept of Law in Pursuit of Pluralist Jurisprudence (Nicole Roughan and Andrew Halpin eds., Cambridge University Press, forthcoming). Here is the abstract.

Law is plural. In all but the simplest situations multiple laws overlap — national laws, subnational laws, supranational laws, non-national laws. Our jurisprudential accounts of law have mostly not taken this in. When we speak of law, we use the singular. The plurality of laws is, at best an afterthought. This is a mistake. Plurality is built into the very reality of law. This chapter cannot yet provide this concept; it can serve only to develop one element. That element is recognition. Recognition is amply discussed in the context of Hart’s rule of recognition, but this overlooks that recognition matters elsewhere, too. My suggestion is that we should accept not one but two rules of recognition in the concept of law. One, well-known, is the rule of internal recognition as developed by H.L.A. Hart — the idea that a developed legal system requires its recognition as law by its officials. The other, much ignored but equally important, is the rule of external recognition — the idea that law is law insofar as it is recognized externally by other legal systems. The rule of internal recognition is an example of a secondary rule. The rule of external recognition is of a different type. It is a tertiary rule. Hart suggested that a legal system is not complete unless it has, in addition to primary, also secondary rules. My suggestion is that, under conditions of legal pluralism, a legal system is not complete without such tertiary rules.

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Ruth Bader Ginsburg's Legacy

Paul Schiff Berman, George Washington University Law School, has published Ruth Bader Ginsburg and the Interaction of Legal Systems in The Legacy of Ruth Bader Ginsburg in (Scott Dodson, ed.; Cambridge University Press, 2015). Here is the abstract.

The idea of legal pluralism is that law must always negotiate situations when multiple communities and legal authorities seek to regulate the same act or actor. These overlapping jurisdictional assertions may occur because of federalism, or because disputes often cross territorial borders, or because of complicated inter-jurisdictional arrangements, as with Indian tribes in the United States. In all of these situations, judges must develop strategies for determining how best to balance the competing claims of multiple communities: does the law of one community triumph, does the law of the other community triumph, or is there some hybrid solution available?

This Essay surveys some of Justice Ruth Bader Ginsburg’s key writings on the interaction of legal systems, both in law journals and in judicial opinions. This analysis reveals a consistent theme in Ginsburg’s jurisprudence. Across a variety of substantive legal areas, Ginsburg often chooses a path that provides maximum play among the legal systems at issue. Beginning with her earliest scholarly writings, she has tended to oppose doctrines allowing one legal system to block another from adjudicating a dispute, and throughout her later career Ginsburg likewise tends to reject bright-line rules that choose one legal system over another. Instead, she often seems to prefer procedural arrangements that seek accommodation and flexibility in order to ensure that multiple legal systems and a variety of norms and processes are respected. These principles also carry over to Ginsburg’s views about international and transnational law. A committed internationalist, Ginsburg advocates the importance of seeking wisdom from others. This non-dogmatic, deferential approach to plural legal systems characterizes much of her jurisprudence on inter-systemic conflicts, though interestingly such deference does not always apply with as much force in Ginsburg’s opinions concerning tribal communities.

By taking stock of Ginsburg’s navigation of legal pluralism in a set of representative writings, we can better theorize her contribution to a jurisprudential approach that seeks ongoing negotiation in an interlocking world of multiple jurisdictions and multiple legal norms. Just as important, this discussion provides an initial case study for thinking more broadly about possible judicial responses to the reality of legal pluralism.

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