11. November 2011, 10.30 Uhr

Panel I: Global Legal Pluralism: Fact, Fiction, Forecast, Norm?

Introduction:

Christoph Menke

The traditional nation state is no longer the only sovereign and supreme legislator. In the era of globalisation other legal actors play a more and more important role: International and supranational organizations like the EU are sometimes empowered to make valid law or they influence the lawmaking of national legislators. Governments regulate many issues by intergovernmental agreements that have an indeterminate legal status. Private actors like multinational companies or NGOs are active in different processes of law making or they set their own rules and create normative orders by self-commitment. As a consequence the law becomes pluralised with regard to the different de-territorialized agencies and actors of legislation and jurisdiction and with regard to different kinds of normativity (like, e.g., “soft law”). Is the fact of such a legal pluralism a challenge to traditional concepts of a unified law, is it a problem which has to be solved, is it an exaggerated description – or is it a new kind of order which we should promote because its advantages outweigh its disadvantages?

Christoph Menke is Professor for Practical Philosophy in the Cluster of Excellence „Normative Orders“ at the Goethe University Frankfurt am Main. The center of his work is in the fields: Political and Legal Philosophy; Aesthetics. Publications (choice): Die Souveränität der Kunst (1988), Tragödie im Sittlichen (1996), Spiegelungen der Gleichheit (2000, 2004), Die Gegenwart der Tragödie. Versuch über Urteil und Spiel (2005), Kraft. Ein Grundbegriff ästhetischer Anthropologie (2008), Recht und Gewalt (2011).

Lecture 1:

“Global Legal Pluralism as a Normative Project”

Paul Schiff Berman

Anthropologists and historians have generally framed the study of legal pluralism in descriptive terms. Accordingly, they have catalogued both the inevitable hybridity that arises when two legal or quasi-legal systems occupy the same social space and the resulting strategic interactions that occur among actors in navigating the multiple regimes. As a descriptive enterprise, legal pluralism is relatively uncontroversial. After all, even the most die-hard sovereigntist would likely acknowledge that sub-, supra-, or non-state normative systems do impose real constraints that have real impacts. More controversial is the idea that legal pluralism might be a normatively desirable approach to the design of legal systems. As a normative project, legal pluralism can be seen to support two different strategies. First, what we might call substantive legal pluralism seeks a sort of multicultural accommodation of alternative norms, at least in certain delineated spheres. Second, a more proceduralist vision of legal pluralism aims to design procedural mechanisms, institutions, and discursive practices that seek to manage, without eliminating, pluralism, without making a priori substantive decisions regarding when deference to alternative norms is appropriate and when it is not. I will defend this proceduralist version of legal pluralism‘s normative project, arguing that the mechanisms, institutions, and practices that result may at times be preferable to either sovereigntist territorialism on the one hand, or universal harmonization on the other. Moreover, I argue that such a proceduralist version of legal pluralism, unlike the substantive version, need not commit one to a program of inevitable deference even to illiberal norms. Nevertheless, this proceduralist approach, precisely because it refuses to engage with some of the most contentious substantive political battles over when deference is appropriate and when it is impossible, may be distrusted or rejected by those on both sides of the pluralism debate who want more substantive normative
certainty.

Paul Schiff Berman serves as the 18th dean of The George Washington University Law School, a school dedicated to teaching and scholarship that emphasizes law in action in the nation’s capital. He joined GW Law in 2011, bringing experience as both an academic administrator and as a renowned teacher and scholar. Berman’s scholarly work focuses on the ways in which globalization affects the intersection of legal systems. From 2008 to 2011, Berman served as dean and Foundation Professor of Law at the Sandra Day O’Connor College of Law at Arizona State University, where he helped to transform the school and build an innovative and expansive model for 21st century public legal education. Among his many accomplishments Dean Berman exponentially increased programmatic offerings and pathways for students while significantly raising the national and international profile of the school. Berman is the author of numerous books and scholarly journal articles. His most recent book, Global Legal Pluralism: A Jurisprudence for Law Beyond Borders, will be published by Cambridge University Press in 2011.

 

Lecture 2:

"Normative Legal Pluralism and Its Discontents”

Klaus Günther

Whereas nearly nobody denies that “legal pluralism” is a correct description of the current status of legal orders in the era of globalization, it is still a controversial issue how one should react to it. Should legal pluralism be regarded as a challenge, in particular for a legal theory which still presupposes a unified and coherent concept of law? Or should it be defended because of normative reasons which claim that a plurality of legal orders and a plurality of different kinds of normative orders is advantageous compared to the traditional concept of law? In my presentation, I shall take legal pluralism as a normative project and ask for some of its consequences. In particular I shall focus on possible changes in the structure of legality which might emerge from pluralism, e.g. for the relationship between law and power, or for the concept of a legal subject.

Klaus Günther born 1957; studied Philosophy and Law in Frankfurt am Main; Professor for Jurisprudence, Criminal Law and Law of Criminal Procedure at the Goethe University Frankfurt am Main; Coordinator of the Cluster of Excellence “Normative Orders”; Member of the Research College at the Institute of Social Science in Frankfurt am main; Permanent Fellow of the Forschungskolleg Humanwissenschaften of the Goethe University in Bad Homburg v.d.H.; Fellow at the Wissenschaftskolleg zu Berlin (1995/96); Guest Professor in Buffalo (2000), Oxford (2001) and Paris (2003). Most important publications: Der Sinn für Angemessenheit (1988, eng. 1993, portug. 2004), Schuld und kommunikative Freiheit (2005).