Global Legal Pluralism and Conflict of Laws

Abstract

Global legal pluralism makes three claims about law:

1) law includes both state law and non-state law;

2) there is a plurality of laws;

3) laws overlap and interact in certain ways.

Among these, the third one is the most difficult one and at the same time the one least theorized. Pluralists lack the instruments to deal with them. The main reason is that they, with rare exceptions, ignore conflict of laws as the discipline that deals with such overlaps and interactions. As a consequence, discussions have stalled: Global legal pluralism is widely accepted as a helpful description of law in the world, but because a more precise conceptualization and theorization is lacking, that description has little impact for further analysis.

This chapter, forthcoming in the Oxford Handbook of Global Legal Pluralism, introduces conflict of laws as a technique and as a discipline to scholars of global pluralists. And it makes the case for why conflict of laws is the adequate discipline, doctrinally and epistemologically, to deal with overlaps and interactions of laws in Global Legal Pluralism. Conflict of laws is superior to other techniques of dealing with diversity due to its experience. Moreover, it is superior to other epistemologies due to a number of its characteristics, in particular its decentralized nature, its technical character, and its ethical position. Scholars working in global legal pluralism would do well to engage with it in a more comprehensive fashion.

Keywords: conflict of laws, law and globalization, legal theory, legal pluralism