Conceptual Theories of Law and the Challenges of Global Legal Pluralism: A Legal Interactionist Approach
Paul Schiff Berman (ed.), The Oxford Handbook on Global Legal Pluralism, (Oxford Univ. Press, Forthcoming)
23 Pages Posted: 14 Dec 2018 Last revised: 17 Apr 2019
Date Written: November 21, 2018
One of the perennial discussions in legal philosophy is: What is law? I will call theories that try to elucidate the concept of law and provide definitions, conceptual theories of law. For such conceptual theories, global legal pluralism presents a number of major challenges, for at least four reasons. First, it recognizes a wide variety of types of law. Second, it recognizes a wide variety of law-producing actors. Third, the phenomenon of gradually emerging legal orders, such as those of international law, is undeniable. Fourth, the pluralism of global legal pluralism is not a loose collection of separate and sovereign legal orders; these legal orders overlap and are intertwined in many ways.
We may discern three different strategies to deal with these challenges: monist, relativist and pluralist. Monist approaches stick to the search for one universal concept of law; they look for essential characteristics that define what makes a normative order to a legal order. Relativist approaches are on the opposite side of the spectrum. They state that as law is a highly variable phenomenon, the best thing to do is to refer to the views of the participants in a certain practice. I argue that we should reject both monism and relativism.
Pluralist approaches are the third strategy to develop conceptual theories of law. For such a strategy we may find a starting point in American pragmatism, and especially in the work of Lon Fuller and Philip Selznick. In my book The Dynamics of Law and Morality, I have elaborated a theory of law inspired by those authors, which I call legal interactionism. Legal interactionism recognises interactional law as a source for legal obligations, but also accepts that contract and enacted law may constitute relatively autonomous legal orders in their own right. Legal interactionism implies a broad form of relative legal pluralism, accepting that there is a great plurality of relatively autonomous legal orders – orders that are partly autonomous and partly intertwined.
In this article, I focus on how it implies conceptual pluralism and definitional pluralism, and then discuss how this enables it to deal adequately with the four challenges global legal pluralism presents.
First, it regards the concept of law as plural, as there may be different, incommensurable conceptions of law that are all defensible and all provide important insights. Rather than accepting one criterion as the ‘distinctively legal’, legal interactionism emphasises that the concept of law is plural in character and can best be analysed in terms of a dynamic family resemblance. Because of this pluralist character, legal interactionism can do justice to both an enormous body of state-enacted law and the emergence of interactional law in various areas of law, including international law. Moreover, it can also do justice to the undeniable fact of global legal pluralism. Therefore, it is the most adequate conceptual theory to study law in the 21st century.
Second, it defends definitional pluralism as a logical implication of conceptual pluralism. If there is not one unified concept of law, but a plurality of defensible, partly incompatible conceptions, there cannot be one general definition of law. Even so, we should be able to present reasonable arguments why we prefer one specific definition, referring to the purpose, the methods and the object of study.
Keywords: global legal pluralism, legal interactionism, concept of law, definition of law, pragmatism, Lon Fuller, Philip Selznick, emergent law, intertwined legal orders
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