Brave New World? The Challenges of Transnational Law and Legal Pluralism to Contemporary Legal Theory
Forthcoming in Nobles and Schiff (eds). Law, Society and Community: Socio-Legal Essays in Honour of Roger Cotterrell (Ashgate 2014)
25 Pages Posted: 23 Jun 2014
Date Written: December 15, 2013
Modern analytical jurisprudence has tended to accentuate an institutional distinctiveness of law from other areas of society, portraying law as a discrete, autonomous, discipline, which may be identified without recourse to moral, value-laden principles.
The critique of legal autonomy asserts that it is problematic to distinguish laws from other normative elements in society and that ‘law’ is a much broader phenomenon than is often admitted. Such a roomier domain for law has for some time been asserted by pluralists. One immediate way in which the multidimensionality, complexity and lack of unity of laws can be identified is to look at law beyond state boundaries. If we do so, law becomes very hard to systematize. Undeniably, the contemporary legal landscape is challenging.
In the face of this somewhat nebulous, indeterminate prospect, how to conceptualize law? As a first step legal pluralism (namely, a state of affairs, for any social field, in which behaviour pursuant to more than one legal order occurs) should now be seen as the most relevant and apposite theory of law, most capable of capturing the complexities of contemporary law.
Yet, legal pluralism is not itself uncomplicated. Many pluralists also include the further and distinct claim that not all law-like phenomena have their source in institutionalized law, which leads to the problems of ‘expansive’ legal pluralism, considered in this paper. Legal pluralism is also usually taken to imply more than just a plurality of laws, but rather a situation in which two or more legal ‘systems’ coexist in the same societal field, sometimes in a contradictory way, in which each may have equally plausible claims to authority.
Unlike some contemporary theorists, I do not believe that legal pluralism presents itself as an ethically preferable position (as opposed to more descriptively accurate) to those monist, or dualist accounts which cleave to notions of a more unified legal space. On the contrary, it is important to be aware that legal pluralism brings with it increased risks of a lack of accountability, or of self-regulating institutions or localised laws being captured by special interests.
Yet legal pluralism has not paid a great deal of attention to such questions. The social fact of multiple legal orders says nothing as to their moral worthiness or capacity for justice. I therefore would argue that justice becomes a key issue for law in the era of legal pluralism. Rather than, or at least in addition to, questions of ordering or interpreting pluralism, we should ask how is justice achievable, given this complexity. Recognition of the complexity of the contemporary landscape, and unwillingness to categorize and simplify, is only the starting point for the project of present day legal theory.
Keywords: jurisprudence, legal theory, legal pluralism, transnational law
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