Legal Pluralism
In the last seminar we critically examined the idea of global constitutionalism through engagement with the proposal to create a World Court for Human Rights. In this class we examine another approach to securing accountability as governance moves beyond the state: legal pluralism.
Legal pluralism rejects the idea that global governance can be contained through a unified legal framework. For pluralists, there are a plethora of overlapping normative systems and regulatory regimes and the key task is to build informal mechanisms that harness this diversity for pursuing accountability. Adherents often highlight the diffuse, fragmentary nature of regulatory governance and claim that voluntary standards and codes of conduct, market mechanisms and non-binding review bodies provide the most appropriate means of resolving disputes and achieving redress. The texts by Scott and Anderson argue that the fragmentation brought on by the rise of the regulatory state and global governance requires a pluralist approach to constitutionalism and accountability.
Core Reading:
Scott, C. ‘Regulatory Governance and the Challenge of Constitutionalism’ in Oliver, D., Prosser, T.
and Rawlings, R. (eds.) The Regulatory State: Constitutional Implications (Oxford University
Press) 15 – 33.
1. What is the key problem that Scott addresses in this chapter? What are his key arguments?
2. What is constitutionalism, according to Scott? What are the ‘narrow’ and ‘broad’ challenges to constitutionalism posed by regulatory governance? Can Scott’s approach be characterised as legally pluralist?
3. Analyse the three different mechanisms (hierarchical, competitive and network) that Scott claims can be institutionalised to foster greater accountability. What are their key features? How do they differ? Which approach do you find most compelling (and why)?
Berman, P.S. ‘The New Legal Pluralism’, (2009) 5 Annual Review of Law and Social Science 225-242.
4. What are the key features of global legal pluralism, according to Berman? How does it differ from the legal pluralism of the past?
5. What are the key reasons for adopting a legal pluralist approach to managing legal conflict, according to Berman? What are the key advantages to pluralism that Berman identifies?
6. What might pluralist approaches to accountability look like? Are they weaker than the constitutional approaches examined in the last class? Which approach do you find more compelling and why for securing accountability in the present?
Background reading:
Anderson, G. Constitutional Rights After Globalization (Hart Publishing, 2005), 3 – 14.
Krisch, N. Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford University
Press, 2010) Chapters 1 – 3.
Berman, P.S. Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (Cambridge University
Press, 2012)
