Jurisgenerative Constitutionalism: Procedural Principles for Managing Global Legal Pluralism

Abstract

Global Legal Pluralism recognizes the inevitability (and sometimes even the desirability) of multiple legal and quasi-legal systems purporting to regulate the same act or actor. However, the resulting pluralism — just as inevitably — creates conflicts among norms that are potentially intractable. Thus, legal systems must address how best to respond to the realities of pluralism. This inquiry has constitutional dimensions because it goes to the constitutive character of communities and their relationships with other communities, be they international, transnational, national, subnational, or epistemic.

One response to pluralism is jurispathic: “kill off” all competing laws by declaring that one set of norms — and only one — shall win. This is a constitutional declaration founded solely on power or messianism, and I argue that it is both unsatisfying as a normative matter and doomed to failure as a descriptive one.

Instead, this article offers principles that would undergird a more jurisgenerative constitutionalism, one that seeks to manage, without eliminating, the plural voices clamoring to be heard. These principles can be used to design procedural mechanisms, institutions, and discursive practices that better respond to the reality of a world of multiple competing voices. In addition, such principles may bring more such voices into the constitutional discourse, thereby creating at least the possibility that enemies can be turned into adversaries, resulting in more fruitful (and peaceful) constitutional interactions.