Two Kinds of Legal Pluralism: Collision of Transnational Regimes in the Double Fragmentation of World Society

Abstract

The article discusses two types of rule collisions, exemplified by the GlobalSantaFe case and the Neem tree case. Both reflect the double fragmentation of world society and its law. The fragmentation is a double one because, firstly, the functional differentiation of modern society causes collisions between different social functional systems and the legal norms coupled to them. Secondly, differences between social organisational principles cause clashes between the formal law of modern society and the socially embedded legal systems of indigenous societies. Until now, the rules on the conflict of laws of neither public nor private international law offer an adequate solution for these new types of collisions. They have been constructed for coping with collisions of national legal orders and not for solving conflicts between national laws and transnational law or the law of indigenous cultures, respectively. With regard to transnational regimes, collision rules have to be developed which take their character as 'self-contained regimes' into account. Here, the substantive law approach which has been developed in private international law seems to be most suitable. With regard to indigenous cultures, the collision rules to be developed must respect the social embeddedness of the legal norms. In this case, the model of the institutionalised and proceduralised protection of basic rights seems to be the most promising.

Keywords: legal pluralism, collision of laws, biopiracy, cybersquatting, indigenous law, customary law

JEL Classification: K33, K39