International law and sociolegal scholarship: Toward a spatial global legal pluralism

• Published date: 05 December 2007
• Date: 05 December 2007
• Pages: 149-168
• DOI: https://doi.org/10.1016/S1059-4337(07)00006-3
• Author: Sally Engle Merry

INTERNATIONAL LAW AND

SOCIOLEGAL SCHOLARSHIP:

TOWARD A SPATIAL GLOBAL

LEGAL PLURALISM

Sally Engle Merry

At a recent conference on international law at UConn law school, I was

intrigued by a talk on the bottom-up production of international law.

Janet Koven Levit (2005), whose article is published in the Yale Journal of

International Law, argued that she was describing a process quite different

from that normally told by international law scholars (p. 126). The common

approach to understanding international law is to tell a top-down story of

states’ treaty-based commitments or an intergovernmental organization

formed by treaty. Insofar as there is a discussion of process, it focuses on

diplomats in luxurious sites fine-tuning the language of a treaty. Yet, there

are also forms of international lawmaking happening as practitioners figure

out how to handle problems on a day-to-day basis. As they do so, they

create and interpret rules, producing their own informal rules and practices.

These ultimately become as much law as those based on top-down treaties.

Levit (2005) says that there are many situations in which practice-based

ways of doing things gradually become law. In the terminology of

international law, ‘‘soft law’’ becomes ‘‘hard law.’’ Soft law refers to a

wide range of international instruments, communications, informal agree-

ments, memoranda of understanding, codes of conduct, or ‘‘gentlemen’s

Special Issue: Law and Society Reconsidered

Studies in Law, Politics, and Society, Volume 41, 149–168

Copyright r2008 by Elsevier Ltd.

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(07)00006-3

149

agreements,’’ while hard law are international rules and norms that at least

technically binding (p. 127).

Levit (2005) looks at three little-known institutions in the world of

international trade finance, one of which is the International Union of

Credit and Investment Insurers (Berne Union), a non-governmental

organization that regulates export credit insurance policies for its members,

both public and private export credit insurers. Some of the rules developed

by this organization have been adopted by formal international lawmaking

institutions, transforming them into hard law. Yet, she notes that these rules

have never been written about because the Berne Union rules have been

accessible only to members (p. 128). Indeed, she had a great deal of difficul ty

getting access to the organization herself, which resisted her inquiries. As the

conference attendees discussed why there was compliance with the technical

rules which this group developed, she noted that the members form a close-

knit group that comes from the same social class although from several

different nations and routinely plays golf and socializes together.

I found this a fascinating example of a process of lawmaking eminently

suitable to sociolegal analysis. It sounded like a close-knit group using

informal social control. Exclusion would be financially as well as socially

costly. This demonstrated for me the value of sociolegal research on

international law. The Berne Union seemed ripe for this kind of study. Here

is law made by a transnational group of public and private actors that shape

the way transnational finance takes place. Furthermore, the idea that small

groups of practitioners develop ways of doing things to make the system

work and that these rules and practices are then appropriated by more

formal institutions describes a process well known to anthropologists who

study village law and its relationship to state law.

International law offers contemporary sociolegal scholars an opportunity

to provide a sociological and cultural analysis of how international law

works. This is a moment, as Levit notes, for the study of international law to

move beyond a defensive insistence that international law is real law, with

clear codes and formal institutions. It is a time to recognize the multiplicity

of sources of law and practices that constitute it. Sociolegal studies took this

approach to analyzing state law, showing that understanding it required

looking at social organization, cultural meanings, and context as well as

rules and formal institutions. Law and society scholarship insisted that law

is constituted in multiple ways and that the practices that shape the way law

operates take place not only in courts but also in lawyer’s offices, district

court clerk’s rooms, mediation centers, and government offices where

regulations are negotiated.

SALLY ENGLE MERRY150