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Berman on Legal Pluralism & Normative Legal Theory

By Lawrence Solum

Paul Schiff Berman (Sandra Day O'Connor College of Law, Arizona State University) has posted Towards a Jurisprudence of Hybridity (Utah Law Review, No. 1, 2010) on SSRN. Here is the abstract:

Debates about non-state normative communities often devolve into clashes between two polarized positions. On the one hand, we see the desire to eradicate difference through forced obeisance to a single overarching state norm. On the other, we see claims of complete autonomy for non-state lawmaking, as if such non-state communities could plausibly exist in isolation from the communities that both surround and intersect them.

Neither of these positions takes seriously the importance of engagement and dialogue across difference. Navigating difference doesn?t require either assimilation or separation; it requires negotiation. Legal pluralists have long charted this process of negotiation, noting, for example, that colonial legal systems did not eradicate indigenous systems (even when they tried to). Instead, there was a layering and intermingling of systems. And, just as important, actors strategically used the variety of fora to gain leverage and make their voices heard.

But legal pluralists have usually stopped at the descriptive. Thus, while they have catalogued the myriad ways in which state and non-state lawmaking interact, they have not taken the next step and attempted to articulate the normative jurisprudence that might flow from these observations. After all, it is one thing to say that as a descriptive matter interactions among legal and quasi-legal systems operating in the same social field inevitably occur; it is quite another to argue (as I attempt to do here) that such messy interactivity is actually a potentially desirable feature to build into legal and political systems.

I call this messy interactivity a jurisprudence of hybridity, and I argue that such a jurisprudence may actually be preferable to either a hierarchical jurisprudence whereby the hegemonic state imposes a universal norm, or a separatist jurisprudence whereby non-state communities attempt to maintain complete autonomy. First, such a jurisprudence acknowledges the reality that people hold multiple community affiliations, rather than dissolving that multiplicity into either universality or separatism. Second, developing procedural mechanisms, institutions, or discursive practices that acknowledge hybridity helps to ensure that multiple communities are at least taken seriously and given a voice. Third, providing space for multiple communities may result in better substantive decisions because there is more space for variations and experimentation.

In this Essay, I start by referencing work of sociologists and political theorists analyzing interpersonal and societal communication, and I contrast a vision whereby difference is overcome by assuming commonality with one in which ?otherness? is seen as an inevitable part of human interaction. I then turn to law and survey three different procedural mechanisms that are or could be examples of a jurisprudence of hybridity with regard to non-state communities. First, I examine the idea of building margins of appreciation into constitutional jurisprudence to allow some scope for local and non-state community variation. Second, I explore the possibility that limited autonomy or participation regimes can help ensure some scope for non-state norms. And third, I suggest that thinking of non-state norms through the prism of conflict of laws doctrines ? jurisdiction, choice of law, and recognition of judgments ? might be preferable to the more mechanistic ways in which clashes between state and nonstate norms are often judged.

An interesting take on an important topic. Highly recommended.

Full post as published by Legal Theory Blog on September 30, 2010 (boomark / email).