Unitary Law Re-form, Pluralistic Law Re-Substance: Illuminating Legal Change
| Author | Roderick A. Macdonald |
| Position | F.R. Scott Professor of Constitutional and Public Law, McGill University |
| Pages | 1113-116 |
F.R. Scott Professor of Constitutional and Public Law, McGill University; Fellow, Pierre Elliott Trudeau Foundation.
I am grateful to Hoi Kong of Queen's University and David Sandomierski (B.C.L./LL.B. 2007) for their critical read of the initial version of this article. I am also pleased to acknowledge the helpful comments of participants at the Law Making in a Global World Symposium at which this initial version was delivered.
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The theme of this symposium, Law Making in a Global World, can be iterated in two ways, depending on how one understands the term "law making." We might imagine how "globalization" affects the manner in which domestic law is conceived, instantiated, brought into force, interpreted, and applied. Or we might imagine how "global law" as transnational law is itself conceived, instantiated, brought into force, interpreted, and applied. The very possibility of these two readings, which signals the internal and external dimensions of legal change, evokes the central ideas I seek to develop in the two main Parts of this article.
The headlong rush of many States, notably in Central Europe, the "-stans,"1 Africa, and South America, to adopt the latest commercial laws of the Western market economies is a clear reflection of the former reading.2 But it is only half the story. The refusal of States in Western Europe, North America, and Australasia to both acknowledge the reciprocity of legal transplantation3 and to attend to the local variations of their own official law, especially in fields like family law, is the other half of the story.4
The zeal of States to invest in international legal institutions of all kinds, from the ICC through to the WTO, and in international instruments of all kinds, from the Conventions of UNIDROIT and Page 1115 UNCITRAL, to regional trade treaties like NAFTA and MERCUSOR, is an example of the second reading.5 For many international norm entrepreneurs, generating a world legal order with its own indigenous transnational law appears to hold out the best hope for peace and economic prosperity.6
It is, obviously, much easier to conceive of law and legal change as exclusively a matter of those artifacts with which one is familiar, over which one has control, through which multi-lingual versions may be easily produced, and by which one can avoid the messiness of social and political diversity.7 Yet preoccupation with these formal artifacts of law and their subjacent ideology of universalizing Page 1116 formal rationality occludes the informal localization and particularity that inevitably accompanies over-reaching generality.8
This article takes a legal pluralistic perspective to explore several dimensions of law making in a global world. It does so through an extended metaphor of light and color.9 The metaphor is meant not just to illuminate, but to illustrate two foundational ideas. It aims, that is, at achieving a performative effect10 by first focusing attention on the complexity of determining how the various forms of legal normativity combine within any particular legal regime, or the plurality of modes of law (Part I), before noting that legal change occurs within and between political States, often without any reference to the law of the State, the plurality of sites of law (Part II). Substantively, this article uses domestic debate about the recognition of same-sex marriage to ground Part I and international debate about secured transactions reform to ground Part II.11
The light we perceive in the visible spectrum presents itself in a singular, undifferentiated fashion. Our most common, though typically unconscious, experience of the phenomenon is, of course, sunlight. We understand perfectly well what is meant when someone says to us, "It's light outside," or, "It's nighttime." What is more, in the normal course of life's events we do not typically attend to the quality of light we perceive. We may, to be sure, worry about its intensity: for example, we notice the difference between a dull day and a cloudless day, and we turn on a bright light to read. Still, unless we have some special reason for doing Page 1117 so, we generally neither distinguish bright desert sunshine from sunlight filtered through urban smog, nor do we attend whether the bulb emitting the light is incandescent, halogen, fluorescent, or even a low energy compact coil.
This said, when questioned, or when it matters to know, we acknowledge that most of our everyday intuitions about light are merely convenient operational hypotheses. So, for example, we know that light comes from manifold sources other than the sun. We are also aware that what we perceive as light frequently results from a combination of sources, occasionally not involving sunlight at all. In addition, we recognize that boundaries between light and dark are often difficult to trace (say at dawn or dusk, or when artificial lighting is low). Still again, the quality of light often does matter, such as when we notice the difference between direct sunlight and the sun's reflection in moonlight, when we distinguish between "black light" and the warm glow of an incandescent bulb, or when we perceive shades of color. Light, for us, is what we perceive. The more we pay attention to what we perceive, the more its complexity is revealed.
Law, admittedly, is not of the same epistemic order as light. Yet its paradigmatic expression in contemporary States, who derive their official legal systems directly or indirectly from Roman law, rests on several operational hypotheses quite similar to those that sustain our quotidian conception of light. Paradoxically, however, we are much more willing to accept our untutored understanding of light as a series of working hypotheses (as opposed to statements of scientific truth) than we are to acknowledge our "common sense" paradigm of law as equally hypothetical. Indeed, even though most of us now believe that law is neither divinely ordained nor a natural necessity, we blithely assert our simplifying hypotheses as being true by definition.
The key definitional truths in conventional understandings of Western law may be summarized as follows:
(1) Monism: Law is formal and institutionalized such that a single legal order has a normative monopoly over a given geographic territory. There is only one source of light in any given location.
(2) Centralism: Law is exclusively the product of the political state. The exclusive source of light is the sun.
(3) Positivism: There can be an ex ante hard criterion for distinguishing that which is law from that which is not law. There is a sharp distinction between light and dark.
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(4) Prescriptivism: Law is about externally-imposed rules and analogous normative statements. All visible light has the same quality.12
Together, these four parameters induce a conception of legal change that can be captured by the expression "law reform." Changing the form changes the norm. Hence, when a legislature enacts, amends, or repeals a statute, its action of modifying a legal text necessarily modifies a substantive legal rule, or so the story goes.13 But does it really?
Consider once again how we apprehend visible light. Our first intuitions are to immediately translate the perception into a singular, undifferentiated sensation. For example, we think about sunlight as being quintessentially white. White is what our brain processes when our eyes are reacting to the entire span of the visible spectrum. This unifying neurological processing is a key part of how we adjust to our physical environment. But the human intellect also strives to disaggregate holistic sensations. Perceiving, naming, categorizing, and understanding in broader synthesis are the procedural steps through which we find comfort when we encounter the "big blooming buzzing confusion" of our physical location.14 Of course, these are the very same steps by Page 1119 which we also make manageable the "big blooming buzzing confusion" of our social lives. As children, one of our first learned skills is the ability to fractionate-to notice difference. But sometimes the price we pay for fractionation aimed at overcoming the confusion of undifferentiated experience is an equally troubling confusion of single instances-of particularism. So, having differentiated, i.e., having found plurality, we then, often desperately, seek to reconstruct singularity and the certainty we believe flows from it.
Locating the most meaningful frame of analysis is the challenge.15 In the physical sciences, we take as given several such frames, such as the visual, the auditory, the olfactory, the tactile, and smell, and the physiological mechanisms they imply. So also in the social world we take certain frames as "given." But, again paradoxically, while we readily admit to the contingency of the physical apprehension of our "situatedness," we experience much more difficulty in acknowledging the contingency of our social "locatedness"-the way in which we organize categories of knowledge. For example, in any given time or place, law simply is. Because of this, we presume that there must be a single, ultimately knowable answer (however indeterminate or controversial its content might be when applied to particular situations) to the...
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