Federalism and international law through the lens of legal pluralism.

AuthorBerman, Paul Schiff
  1. INTRODUCTION

    Federalism in the United States is often discussed in terms of sovereignty. Thus, we are told that the colonies were originally completely separate sovereign entities and that though they ceded some authority to the federal government, they retained their sovereign prerogatives. Accordingly, so the story goes, we live in a system of 51 sovereignties, and discussions of federalism are about how best to negotiate the relative power of these different sovereign entities. (1)

    This, however, is not the only way of thinking about federalism. Indeed, there is a different story we could tell, perhaps best captured in the oft-quoted idea of the states as "laboratories" of democracy. (2) Here the federal system is important not so much because such a system maintains the autonomy of different sovereign entities, but because it provides the opportunity for multiple decision-makers to try out different solutions to similar problems. Moreover, the dialogue among the multiple decisionmakers may cause better solutions to spread through the system or may cause decisionmakers to recognize that varying solutions may be appropriate given varying local conditions. From this perspective, the overlapping jurisdiction of federal and state entities is seen as opening the possibility for creative innovation. This is what might be called a pluralist justification for federalism.

    As with federalism, the relationship between international law and nation-state law similarly is often viewed through the lens of sovereignty. And again, as with federalism, the sovereigntist approach focuses on states as autonomous power centers. Thus, according to the conventional narrative, states use international law when it is in their interests, but ignore it when it is not. In this vision, international law is merely an epiphenomenon of state sovereignty, not any limitation upon it. (3)

    But, again as with federalism, we can view international law through a pluralist lens. Thus, we may focus on international and transnational legal pronouncements as providing alternative sources of authority that can change legal consciousness over time, affect local debates, empower different local actors, and provide an alternative set of fora in which individuals and coalitions can make their voices heard. (4) On this view, rational choice understandings of how international law works or pure theory debates about sovereignty are limited because they focus too heavily on coercive power, thereby giving insufficient attention to the role of rhetorical persuasion, informal articulations of legal norms, and networks of affiliation that may not possess literal enforcement power. All of these are emphasized in a pluralist frame.

    Recently, a group of scholars, many influenced by the seminal work of Robert Cover, (5) have embraced a more pluralist approach to both American federalism and international law. (6) They have touted the important virtues of jurisdictional redundancy and inter-systemic governance models in which multiple legal and regulatory authorities weigh in regarding the same acts and actors. And, like Cover, they argue that such jurisdictional redundancies are not just a necessary accommodation to the reality of a world of multiple authority; they may actually be beneficial. In short, we can view legal pluralism (to use the parlance of computer science) as a feature and not a bug.

    This is a controversial move. After all, it is one thing to recognize the inevitability of legal pluralism as a description of reality and quite another to treat it as normatively desirable. Indeed, legal pluralists have historically focused primarily on the descriptive, tracing the overlaps and tensions that occur when two or more legal or quasi-legal systems operate in the same social field. (7) Thus, anthropologists have charted the relationships between colonial and indigenous legal systems, (8) theorists of religious pluralism have documented the interactions between state law and religious communities, (9) and so on. These scholars have persuasively argued that all legal systems are inevitably plural. And while such an argument depends in part on how broad one's definition of law is, (10) there can be little dispute that legal pluralism is often an accurate description of the world we live in.

    But what about the next step: that legal pluralism is actually a desirable aspect of a legal system, one with distinct benefits? After all, Cover's article, The Uses of Jurisdictional Redundancy, aimed not simply to describe American federalism, but to justify it. (11) Indeed, Cover celebrated the benefits that accrue from having multiple overlapping jurisdictional assertions (by both state and non-state entities). (12) Such benefits include a greater possibility for error correction, a more robust field for norm articulation, and a larger space for creative innovation. (13) Moreover, we might think that when decisionmakers are forced to consider the existence of other possible decisionmakers they will tend to adopt, over time, a more restrained view of their own "jurispathic" power. (14) Instead, they may come to see themselves as part of a larger tapestry of decisionmaking in which they are not the only potentially relevant voice. Finally, though Cover acknowledged that it might seem perverse "to seek out a messy and indeterminate end to conflicts which may be tied neatly together by a single authoritative verdict," he nevertheless argued that we should "embrace" a system "that permits ... tensions and conflicts of the social order" to be played out in the jurisdictional structure of the system. (15) Thus, Cover's pluralism, though focused on U.S. federalism, can be expanded to include the creative possibilities inherent in multiple overlapping jurisdictions asserted by both state and non-state entities in whatever context they arise. More recently, Judith Resnik has touted the "multiple ports of entry" that a federalist system creates (16) and has argued that what constitutes the appropriate spheres for "local," "national," and "international" regulation and adjudication changes over time and should not be essentialized. (17) A pluralist approach resolutely refuses such sovereigntist essentialization.

    In this brief Essay, then, I wish to engage in a thought experiment by looking at both federalism and international law through a pluralist rather than a sovereigntist lens. First, I summarize the pluralist literature and some of its core insights and suggest that scholars interested in international law (and its relationship with domestic law) would do well to consider this literature. Second, I provide a few examples of jurisdictional redundancy operating in the transnational, international, and federalist realm and show how the existence of multiple fora can both empower voices that might otherwise be silenced and effect changes of legal consciousness over time. Finally, I turn to a recent controversy concerning the relationship between federalism and international law, Medellin v. Texas, (18) in which the United States Supreme Court intervened in a dispute among the International Court of Justice, the Bush administration, and the State of Texas regarding the appropriate role of the Vienna Convention on Consular Relations (19) in a state capital murder case. Although the Supreme Court majority emphasized the need to delineate clear, non-overlapping spheres of international, national, and state authority, I draw on the insights of legal pluralism to proffer a more flexible approach to the interaction of multiple sources of law implicated by the case.

  2. LEGAL PLURALISM AND THE GLOBAL LEGAL ORDER

    As I have argued elsewhere, (20) scholars seeking to understand the multifaceted role of law in an era of globalization (21) must take seriously the insights of legal pluralism. In general, theorists of pluralism start from the premise that people belong to (or feel affiliated with) multiple groups and understand themselves to be bound by the norms of these multiple groups. (22) Such groups can, of course, include familiar political affiliations, such as nation-states, states within a federation, counties, towns, and so on. But many community affiliations, such as those held by transnational or subnational ethnic groups, religious institutions, trade organizations, unions, internet chat groups, and a myriad of other "norm-generating communities" (23) may at various times exert tremendous power over our actions even though they are not part of an "official" state-based system. Indeed, as scholars of legal pluralism have long noted, "not all the phenomena related to law and not all that are lawlike have their source in government." (24)

    Just as importantly, legal pluralists have studied those situations in which two or more state and non-state normative systems occupy the same social field and must negotiate the resulting hybrid legal space. Historically, anthropologically-oriented legal pluralists focused on the overlapping normative systems created during the process of colonization. (25) For example, early Twentieth-Century studies of indigenous law among tribes and villages in colonized societies noted the simultaneous existence of both local law and European law. (26) Indeed, British colonial law actually incorporated Hindu, Muslim, and Christian personal law into its administrative framework. (27) This early pluralist scholarship focused on the hierarchical coexistence of what were imagined to be quite separate legal systems, layered one on top of the other. Despite the somewhat reductionist model, these pioneering studies established the key insights of legal pluralism: a recognition that multiple normative orders exist, a focus on the dialectical interaction between and among these normative orders, and an identification of the ways in which actors strategically use the existence of multiple fora to pursue their agendas. (28)

    In the 1970s and 1980s...

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