Volume 9, Issue 2 - Legal Pluralism, Privatization of Law and Multiculturalism

This Article examines normative arguments for legal pluralism in regulation. First I briefly set out what we know in fact about how plural regulatory orderings interact and compete with state agency regulatory action. Second, I sketch, and reject, a simple legal pluralist response to regulatory pluralism. In the third part of the Article I show that "responsive" and "reflexive" approaches to intentional pluralization in the design of law should be seen as providing different but complementary pictures of pluralized law. Finally I argue that this pluralized view of law might provide us with the conceptual tools to identify a type of emergent, pluralistic law, without or beyond the state, which would be relevant to thinking about both transnational regulation and multiculturalism.

Recent years have seen abundant literature, in law and the social sciences, addressing the significance of "soft law," "self-regulation," and "private law-making" and analyzing the potential implications of "governance" in general for the trajectory of law. This Article is grounded in and oriented towards this broad theoretical and conceptual terrain by pointing at empirical phenomena that mark a shift towards market-embedded forms of social regulation. I specifically discuss the Equator Principles, a self-regulatory blueprint for overseeing the social and environmental performance of project-finance initiatives. I argue for an understanding of the process in terms of a general moralization of markets, in and of itself a product of neo-liberal conceptions of governance. I posit that one implication of this process is that socially-oriented norm-making and norm-enforcement merge with the instrumental and utilitarian logic of markets.

Both decentralization of state law and cultural relativism have been fundamentally embedded in legal pluralism. As a scholarly trend in law and society, it has insightfully challenged the underpinnings of analytical positivist jurisprudence. Nevertheless, a theoretical concept of political power has significantly been missing in research on the plurality of legal practices in various jurisdictions. This Article aims to critically offer a theoretical concept of political power that takes legal decentralization and cultural relativism seriously and yet points to how and where we should look into political power, assuming that legal pluralism itself may be a strategy of elites and nation-states amid globalization. First, the Article explores the contributions of legal pluralism, and its limits, in intellectually revolting against analytical positivist jurisprudence. Second, it explicates why a concept of political power has been missing, and why such a concept is required for better comprehension of legal pluralism. Third, it calls for a look into three sites of political power in the praxis of legal pluralism: politics of identities, non-ruling communities, and neo-liberal globalization. Last, the Article constructs a concept of political-legal transformations that enables us to unveil political power in the context of de-centralized legal pluralities. Power is produced in, resides in and is generated in the dynamic interactions between nation-states, localities and global agents. Transformative relations along these dimensions allow the nation-state to forfeit some elements of power, both in economics and in law, but they also enable it to maintain some essential ingredients of political power that are often veiled in the rhetoric of globalized pluralism.

This Article examines the implicit assumptions about the state and state-society relations that pervade the literature on legal pluralism. I argue that much of this literature rests on an underlying conception of the state as a monolithic entity which is clearly and objectively differentiated from society. Most notably, John Griffiths’ influential distinction between "weak" legal pluralism, which exists within the boundaries of the state, and "strong" legal pluralism, which involves both state and non-state legal orders, reflects such assumptions. I contend that an alternative conceptualization of the state, which acknowledges the internal diversity and contradictions within the state and the blurred boundaries between state and society, can serve as a more productive basis for the study of legal pluralism. Such an approach draws attention to the socially constructed character of the boundaries between state and non-state legal orders, to the social significance of intra-state legal pluralism, to the points of view of individual litigants who maneuver between different courts of law, and to the institutional level of analysis, namely, the complex interrelations between different courts under conditions of legal pluralism.

This Article examines the different meanings of Ehrlich’s idea of living law in relation to current debates about legal pluralism. It distinguishes three aspects of Ehrlich’s concept as these have been elaborated in the later literature: "law beyond the law," "law without the state," and "order without law." This retrospective shows that Ehrlich was not principally concerned with defending the rights of ethnic or autonomous communities as such. In taking his work further, it is important to recognize to what extent official and unofficial law are even more interdependent today than in his day. But we may still find his work of relevance to thinking about the normative challenges of plural legalities.

The three central themes underlying this issue of Theoretical Inquiries in Law—the privatization of law model, the legal pluralism paradigm, and multiculturalism — are united in their shared opposition, be it descriptive or normative, to the monopolistic concentration of law production power in the hands of the state. The three models focus on dispersion of the social ordering function amongst non-state agents. They advocate the claim that the state has not succeeded at securing a monopoly over law and/or should not secure a monopoly over law. On the policy front, as well, protagonists of the privatization of law model, scholars of the legal pluralism paradigm and writers in the multiculturalism tradition often unite in their plea for recognition of tribal courts or the expansion of the lawmaking capacity of local governments. However, despite their shared underlying assumption that the centralist state law model lacks normative appeal, these three bodies of research diverge significantly. The differences between them have been marginalized in the debate, because each of these models has essentially concentrated on conducting the dialogue with the state law model. Thus far, these models have been solely occupied with taking a particular stance against the centralization model of state law, and have failed to engage in any debate amongst themselves as representatives of alternative legal decentralization schemes. This Article attempts to partially fill the void, by pitting the multiculturalism model of legal decentralization against the privatization model. It will show that the differences in both models’ legal decentralization visions derive from conflicting ontological premises regarding law, community, social life, and the human subject. These theoretical distinctions, which will be drawn between the two decentralization models, have great bearing when considering the social units that ought to supplant the state in its lawmaking capacity.

Must the state handle the adjudication of disputes? Researchers of different perspectives, from heterodox scholars of law who advocate legal pluralism to libertarian economists who advocate the privatization of law, have increasingly questioned the idea that the state is, or should be, the only source of law. Both groups point out that government law has problems and that non-state alternatives exist. This Article discusses some problems with the public judicial system and several for-profit alternatives. Public courts lack both incentives to embrace customer orientation and pricing mechanisms, plus they face problems associated with the bureaucratic provision of services. When parties are able to choose their tribunals, in contrast, those tribunals must provide service to customers and be mindful about conserving resources. Competition between arbitrators also can allow for experimentation and the provision of customized services rather than a centrally planned, one-size-fits-all system. Contracts with arbitration clauses can easily stipulate the choice of tribunal, and we argue that if government courts simply refused to overrule binding arbitration agreements, de facto privatization could easily take place. This Article discusses how the private adjudication of disputes could enable the market to internalize externalities and provide services that customers desire.

Advocates of the privatization of law often assume that unless law springs from some act of agreement, some express or implicit social contract by which individuals consent to be bound, it is nothing more than force. In this Article, I argue that this is a false dilemma. Although law is rarely grounded in consent, this does not imply that law necessarily gives some individuals command over others. Law can arise through a process of evolution. When this is the case, those subject to law are indeed bound, but not by the will of any particular human beings. Although this depoliticized law is inherently coercive, it is not inherently a vehicle for domination. This Article argues that such a system of depoliticized law is consistent with the ideal of the rule of law, and, in fact, is free market law, when that phrase is properly understood.

I argue here against recent trends in liberal and feminist theory contending that the state should insist that religious groups internalize liberal justice and equality. Doing so dangerously ascribes too much power to the state, and threatens liberty and stability. I argue instead that the liberal state must balance different values. I begin by claiming that while Rawls worries that religious people want to impose their way of life on others, a more accurate concern is that of liberalism imposing its way of life on religious conservatives. I also contend that Rawls’s concern about stability leads him wrongly to think that there must be widespread agreement on the principles of justice, which leads to considerable intrusion in conservative religions. This widespread agreement is unattainable; a better route to stability is through extensive agreement on decision making procedures. Feminist arguments are less concerned with stability, but share with Rawls the idea that private values should be congruent with public ones. I argue that doing so leads to unacceptable intrusions on liberty. Religious groups can be internally non-liberal as long as there is pluralism within the society, exit from groups is assured, and their members all receive a decent education.

Demands to accommodate religious diversity in the public sphere have recently intensified. The debates surrounding the Islamic headscarf (hijab) in Europe vividly illustrate this trend. We also find a new challenge on the horizon: namely, the request to "privatize diversity" through alternative dispute resolution processes that permit parties to move their disputes from public courthouses into the domain of religious or customary sources of law and authority. The recent controversies in Canada and England related to the so-called Shari’a tribunals demonstrate the potential force of the storm to come. In this Article, I offer an alternative to the presently popular vision of private diversity. This alternative is based on a deep commitment to women’s identity and membership interests as well as their dignity and equality. Women’s legal dilemmas often arise (at least in the family arena) from their allegiance to various overlapping systems of identification, authority and belief: in this case, those arising from religious and secular law. I argue that only recognition of women’s multiple affiliations, and the subtle interactions among them, can help resolve these dilemmas. The recognition of multiple legal affiliations does not sit well with the traditional view that a clear line can be drawn between public and private, official and unofficial, secular and religious, or positive law and traditional practice. Instead, to recognize multiple affiliations is to require greater access to, and coordination among, these once competing sources of law and identity. Once we conceive of citizenship more richly, it becomes apparent that individuals and families should not be forced to choose between the rights of citizenship and group membership: instead, they should be afforded the opportunity to express their commitment to both. I offer a vision of how such an alternative might be realized.

Over the last twenty years, liberal thinkers have invested a great deal of effort in adapting liberal political theory to the multicultural condition. The central question that has occupied these thinkers is how a liberal state ought to treat cultural practices of non-liberal groups living within it. One major group of thinkers insists that it is incumbent on the liberal state to make sure that autonomy, together with some other central liberal values, are made part of the lives of all the citizens living in the state. Another major group holds that it is the function of the liberal state to serve as framework for the peaceful co-existence of people who have diverse conceptions of the good life. These thinkers therefore call for "restraint" on the part of the state in its relations with non-liberal groups. This Article wishes to go beyond these two approaches. It is motivated by the conviction that the only standards that a liberal state can invoke in its relations with non-liberal groups are universal standards, i.e., standards that can be viewed, to the utmost extent possible, as transcending any particular culture, and that can be applied not only to non-liberal cultures, but to the culture of the mainstream liberal society itself. The Article puts forth a series of considerations that must be taken into account when intervention on the part of a liberal state in cultural practices of non-liberal groups is considered. It also sets forth two proposals as to the standards that need to guide the liberal state in cases in which it considers intervention in cultural practices of groups living in it: the doctrine of human rights (and the concept of human dignity that stands at its core) and the concept of humanness.

Minimalism is a theory, of increasing popularity in the United States in recent decades, that requires the judiciary to base its decisions on the most limited grounds available. One of its central tenets dictates that the judiciary, if at all possible, should base its rulings on statutory rather than constitutional grounds. Set in the context of the "War on Terror" and a number of U.S. Supreme Court decisions regarding the rights of prisoners held in Guanta´namo, this Article seeks to identify the pitfalls of such an approach to judicial decisionmaking. Specifically, it shows how minimalism has led to legislative enactments that deprive the prisoners of basic rights and that, as a practical matter, compromise the capacity of the Supreme Court ever to adequately address the prisoners’ claims. Although minimalism has been defended on the ground that it furthers democratic values, such a view reduces democracy to majoritarianism as opposed to a broad-based deliberative process that gives content to the fundamental values of the nation. It also overlooks the important and constructive role of the judiciary in that process.