Global Legal Pluralism : A Jurisprudence of Law Beyond Borders

"We live in a world of legal pluralism, where a single act or actor is potentially regulated by multiple legal or quasi-legal regimes imposed by state, substate, transnational, supranational, and nonstate communities. Navigating these spheres of complex overlapping legal authority is confusing, and we cannot expect territorial borders to solve all these problems because human activity and legal norms inevitably flow across such borders. At the same time, those hoping to create one universal set of legal rules are also likely to be disappointed by the sheer variety of human communities and interests. Instead, we need an alternative jurisprudence, one that seeks to create or preserve spaces for productive interaction among multiple, overlapping legal systems by developing procedural mechanisms, institutions, and practices that aim to manage, without eliminating, the legal pluralism we see around us. Such mechanisms, institutions, and practices can help mediate conflicts, and we may find that the added norms, viewpoints, and participants produce better decision making, better adherence to those decisions by participants and non-participants alike, and ultimately better real-world outcomes. Global Legal Pluralism provides a broad synthesis across a variety of legal doctrines and academic disciplines and offers a novel conceptualization of law and globalization"--Provided by publisher Cover 1 GLOBAL LEGAL PLURALISM 3 Title 5 Copyright 6 Dedicated 7 Contents 9 Acknowledgments 11 Part I: MAPPING A HYBRID WORLD 15 1: Introduction 17 2: A World of Legal Conflicts 37 Examples of Jurisdictional Hybridity 39 State Versus State Conflicts of Norms 41 State Versus International Conflicts of Norms 49 Nation-State Versus Substate Conflicts of Norms 51 State Versus Nonstate Conflicts of Norms 55 Legal Pluralism and Global Legal Interactions 58 Part II: RETREATING FROM HYBRIDITY 73 3: The Limits of Sovereigntist Territoriality 75 The Unmooring of Cultures, Peoples, and Places 77 The Nation-State as an Imagined Community 88 Conceptions of Subnational, Transnational, Supranational, and Cosmopolitan Identities 104 Concerns About Democratic Legitimacy 106 Why Sovereigntist Territorialism Fails to Describe the Global Legal System 110 International Legal Consciousness 114 Multiple Constituencies and the Deployment of International Law 127 4: Universalism and Its Discontents 142 Self, Other, and the Negotiation of Difference 143 Uniformity Versus Fragmentation 145 Part III: EMBRACING HYBRIDITY 153 5: Toward a Cosmopolitan Pluralist Jurisprudence 155 6: Procedural Mechanisms, Institutional Designs, and Discursive Practices for Managing Pluralism 166 Dialectical Legal Interactions 167 Margins of Appreciation 175 Limited Autonomy Regimes 177 Subsidiarity Schemes 182 Hybrid Participation Arrangements 185 Mutual Recognition Regimes 193 Safe Harbor Agreements 195 Regime Interaction Within the International System 196 Part IV: CONFLICT OF LAWS IN A HYBRID WORLD 205 7: The Changing Terrain of Jurisdiction 209 Jurisdiction and the Social Construction of Space 210 Jurisdiction and the Assertion of Community Dominion 219 Jurisdiction and the Extension of Community Membership 221 Jurisdiction and the Assertion of Alternative Norms 224 Constructing a Cosmopolitan Pluralist Framework for Jurisdiction 229 State-Sanctioned Courts 229 Nonstate Communities 237 The Value of Jurisdictional Redundancy 250 8: A Cosmopolitan Pluralist Approach to Choice of Law 258 Territorialism 259 Parochialism 265 Substantivism 271 Cosmopolitan Pluralism 276 State-Sanctioned Courts 283 GlobalSantaFe Corp. v. Globalsantafe.com 283 Barcelona.com, Inc. v. Excelentisimo Ayuntamiento de Barcelona 293 Religious Communities 300 Bob Jones Univ. v. United States 301 Employment Div., Dept. of Human Resources of Oregon v. Smith 304 9: Recognition of Judgments and the Legal Negotiation of Difference 308 Recognizing the Judgments of Foreign States 310 Recognizing the Judgments of International and Substate Communities 318 Recognizing the Judgments of Ethnic Communities 332 10: Conclusion 337 Index 343 Introduction A world of legal conflicts The limits of sovereigntist territoriality Universalism and its discontents Towards a cosmopolitan pluralist jurisprudence Procedural mechanisms, institutional designs, and discursive practices for managing pluralism The changing terrain of jurisdiction A cosmopolitan pluralist approach to choice of law Recognition of judgments and the legal negotiation of difference Conclusion. This book proposes a multidisciplinary approach that seeks to grapple with the pluralist reality rather than ignoring it, as both nation-state sovereigntists and international law triumphalists tend to do. It addresses both public and private law subjects and the interactions of both formal law and informal norms.