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Understanding Global Legal Pluralism

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How can understanding global legal pluralism enhance our approach to managing the complex web of multiple, overlapping legal systems and regulatory bodies in today’s interconnected world?

Image courtesy of interviewee. November 6, 2024

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This video discusses the concept of legal pluralism, which asserts that multiple legal systems exist and influence behavior within any given society, rather than a single governing legal framework. This video perspective examines the interactions between formal law, religious norms, corporate policies, and technological regulations, emphasizing that various factors regulate daily behavior.

Historically, studies of legal pluralism focused on local contexts, but post-Cold War, scholars began applying these concepts to the global legal environment due to the emergence of international tribunals and corporate codes. The rise of technology further complicates regulation as it creates scenarios where technological rules can supersede national laws.

The discussion highlights how legal systems interact, such as the European Court of Justice's "right to be forgotten," which relies on technology firms to enforce its rulings globally. The essence of legal pluralism is to understand the interplay of different regulatory mechanisms, proposing a framework that engages dialogue across diverse legal and cultural systems instead of imposing uniform rules.

Moreover, the text critiques the view that territorial boundaries strictly define legal authority, emphasizing a more fluid, interconnected world where legal contestation is constant. This video requires recognizing that a single state's legal authority is never absolute, and entities often influence one another, leading to a continuous negotiation of norms and regulations.

Finally, the text advocates for embracing contestation within legal systems as a means to foster dialogue, rather than suppressing it. By encouraging diverse voices and perspectives, societies can work towards cooperative engagements and resolution of conflicts, ultimately aiming to transform adversities into collaborative discussions.

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Here are five key points from the video on legal pluralism:

1. **Definition and Scope of Legal Pluralism**: Legal pluralism refers to the existence and interaction of multiple legal and regulatory systems within a single social convideo, emphasizing that regulation can come from various sources beyond formal state laws, including religious codes, corporate policies, and technological regulations.

2. **Global Convideo**: Historically focused on local systems, legal pluralism has expanded in the post-Cold War era to consider how international and transnational legal frameworks (like international tribunals and corporate codes of conduct) interact with national laws, especially as globalization and technological advancements challenge traditional notions of sovereignty.

3. **Regulatory Interactions**: The interplay between different legal systems is crucial for understanding how behavior is regulated. For example, technological laws can have stronger implications for individuals than state laws, exemplified by the complexity of copyright law and enforcement in relation to digital media.

4. **Impact of External Pressures on Sovereignty**: The influence of external legal mechanisms can affect national sovereignty and domestic legal decisions, illustrated through case studies like Argentina's amnesty decisions being influenced by actions taken in other countries, showcasing how global legal pluralism creates pressures that shape local laws.

5. **Dialogue Across Difference**: Legal pluralism advocates for creating mechanisms to facilitate dialogue among diverse legal and cultural perspectives. By enabling interactions among differing groups, the aim is to transform enemies into adversaries and foster cooperative engagement rather than conflict, emphasizing the importance of procedural mechanisms that allow underrepresented voices to be heard in legal and political systems.

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Here are some key quotes summarizing the main ideas from the video on legal pluralism:

1. **Concept of Legal Pluralism**: "Legal pluralism is the idea that in any given social space, any given convideo, there isn't only one thing that regulates us."

2. **Multiple Regulatory Influences**: "There are lots of other things that regulate our behavior on a day-to-day basis... they could be religious codes, they could be corporate codes of conduct."

3. **Historical Convideo**: "The indigenous legal system never completely disappears in places where the state is not that strong."

4. **Regulation by Technology**: "Nowadays we're regulated a lot, by our technology... the way we tend to think of law."

5. **Complex Interactions**: "In any given convideo, you can't just look at the formal legal system. You actually have to look at all the things that are going on in society."

6. **Global Legal Environment**: "In the post Cold War era, there were... a huge number of new international tribunals... and the rise of the internet."

7. **Challenge to State Sovereignty**: "We need to understand... that we actually live in a world that's much more fluid, that has much more contestation, that has much more overlap, among regulatory systems."

8. **Intelligibility of Legal Systems**: "No legal system has without any input from beyond."

9. **Interplay of Local and Global**: "The amnesty decision itself was not a unified decision by Argentina as a sovereign... it was a contested question, even within Argentina."

10. **Dialogue Across Differences**: "We want to bring those people into dialogue... the more enemies we can turn into adversaries, the better."

11. **Institutional Framework for Interaction**: "We might want to create... procedural mechanisms or institutions that will facilitate dialogue and cooperation among multiple communities."

12. **Critique of Majoritarian Democracy**: "Global legal pluralism would say, well, it might be permissible, but it's not preferable."

13. **Reality of Contestation**: "The pluralism never ends... The contestation never ends."

14. **Need for Understanding Complexity**: "If we want to understand what's going on in our legal system, we have to understand that it's constantly contested at every level."

These quotes encapsulate the essence of the discussion about legal pluralism, focusing on the diversity of legal influences, the importance of convideo, the dynamic nature of law and regulation, and the significance of dialogue in resolving conflicts.

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Legal pluralism is the idea

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that in any given social space, any given context,

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there isn't only one thing that regulates us.

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Uh, so we tend to think of the nation state

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or a state within a federal system, passing laws

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that regulate us.

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Uh, but there are lots of other things

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that regulate our behavior on a day-to-day basis.

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Um, they could be religious codes,

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they could be corporate codes of conduct, in,

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the classic kind of colonial encounter.

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Um, you would have a colonial power that would come in,

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let's say, great Britain into India,

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and they would impose a new legal system.

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But the indigenous legal system never completely disappears

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in places where the state is not that strong.

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You could have warlords, you could have tribal leaders.

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Uh, and nowadays we're regulated a lot,

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by our technology.

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There are things you can do with your phone

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and there are things you can't do with your phone.

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Uh, and that has nothing to do with law,

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the way we tend to think of law.

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Um, but it certainly regulates our behavior.

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And so legal plurals, in anthropology

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or in political theory,

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we're always interested in studying the interaction

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among legal systems or among legal and quasi-legal systems.

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Uh, and so that's what legal pluralism focused on.

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And it was mostly a descriptive enterprise to say

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that in any given context, you can't just look at,

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the formal legal system.

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You actually have to look at all the things

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that are going on in society,

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if you wanna see both the contestation

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that's going on in society, as well

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as all the things that regulate us.

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Now, in the 1990s,

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in the immediate post Cold War period, there were a group

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of scholars of which I was one, that, began

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to use the concepts of legal pluralism

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to study the global legal environment.

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So, legal pluralism had historically been a kind of local,

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study that you would look at a particular, locality

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and look at all the legal

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and quasi-legal, regulatory, systems

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that might be operating there.

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But in the post Cold War era, there were a huge number

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of new international tribunals.

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Um, there were big international corporate codes of conduct

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that were being created.

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Um, there were, attempts to assert, more,

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universal jurisdiction, over war criminals

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or others who had committed

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international human rights crimes.

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And there was the rise of the internet,

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and the idea that maybe nation states, wouldn't be

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so capable of regulating, all of this behavior, much

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of which doesn't have a territorial location.

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So the idea was that even in,

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looking at the international environment

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and the interaction of nation states

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and the interaction of, formal law, you needed

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to actually look at all the different regulatory mechanisms

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that might be in existence,

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and see how, sovereignty

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or conceptions of nation state sovereignty might be

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challenged, in this environment.

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And also with the rise of technology,

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that there were areas

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where states might actually have difficulty regulating

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and where private actors might actually be more effective,

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in regulating for better or worse.

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Uh, and, so this is not a statement that,

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pluralism is either good or bad, but it is a reality.

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And if you want to understand

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what is regulating our behavior at any given moment, we have

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to not only think of our own nation, our own locality,

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and the formal laws.

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We have to think of all the different regulatory inputs,

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industry standard setting bodies, and so forth.

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Uh, and all of that goes into figuring out

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what regulates our behavior on a day-to-day basis.

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So legal pluralism

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and global legal pluralism is focused on those interactions.

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If you think about, for example, the interaction

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of state law and technology.

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Um, so, you know, in the United States,

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we have a copyright law,

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and the copyright law has an idea of fair use.

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Uh, so, you know, there are certain things that,

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for instance, I, as an educator could do.

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I could, show a clip

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of a film in my class in order to illustrate some point,

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and comment on it.

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Uh, and that would not be a copyright violation,

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even though it was a public showing of the work,

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because it would be considered a fair use.

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And there if therefore it would be permitted.

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But if I wanna show a clip of a movie in my class,

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and it's beyond, behind an Amazon paywall

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or an Apple TV paywall, it doesn't matter

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that the copyright law would allow me to do it.

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Uh, I literally can't do it

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unless I illegally hack around, apple

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or Amazon's paywall.

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I'm gonna have to pay, whatever the fee is,

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in order to use that movie.

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So that's an example of a technological

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law, if you will, that is stronger in certain ways,

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than the nation state copyright law.

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Uh, and so, that's sort of one interaction.

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Uh, but you could also look at, the interaction,

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for instance of, state

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and, technological law in, the European Union.

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The European Union, the European, court

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of human rights, created an idea of,

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let, let me go back.

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The, you can look at in Europe, the European Court

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of Justice, created this idea of a right to be forgotten

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so that there is, material that if it's about you,

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but it's no longer really historically relevant,

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and, it's something that you want removed,

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from a website, let's say,

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you have a right to be forgotten.

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You have a right to remove some of that material,

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particularly if there's no public interest

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anymore in that material.

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Uh, but, the European Court of Justice can't enforce

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that order beyond Europe,

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because it's got,

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limitations based on territory and sovereignty.

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Um, but it can ask Google to make it so

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that if you search for

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that person's name in a Google search,

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it simply doesn't come up.

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It's not that the website doesn't exist,

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it's just it doesn't show up in the search.

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Uh, and that's equivalent to eliminating

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that website or that name in that website

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for the entire world.

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And so that's an example of a, a European court leveraging

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a technology company, to expand,

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its regulatory power beyond its own territory,

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beyond its own sovereignty.

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Uh, and so we need to understand, these kinds of

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regulatory interactions.

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Uh, and we can't just assume that we live in a world

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where every state operates within its own boundaries,

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and every law only goes to its territorial boundaries.

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Uh, and every state is hermetically sealed from the other.

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We actually live in a world that's much more fluid,

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that has much more contestation, that has much more overlap,

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among, regulatory systems.

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It certainly is the case that,

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it's a complicated world that we live in.

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Uh, and, you could think that, maybe, you know,

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focusing on legal pluralism makes it more complicated.

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It's not that global legal pluralism

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makes it more complicated.

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The world is complicated.

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Uh, we live in a world where, we sometimes assume

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that jurisdictional rules are fixed,

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and that territory is the defining feature of law.

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Um, but we actually live in a law, in a world

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where there's a lot of interactivity,

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among these legal systems.

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And no legal system has

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complete full 100% authority over its people,

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without any input from beyond.

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So, just to give a couple of examples.

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Um, so, you could say that, a country,

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let's say Argentina, has sovereignty

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and it can make decisions.

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Uh, and, at one point, Argentina decided,

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that it was going to give amnesty, to all

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of the members of the military

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and others who had been involved in human rights,

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abuses in the past.

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Uh, and that that was a way we were going to move forward.

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And Argentina decided it,

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and it was a sovereign country making a sovereign decision.

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Um, but of course, that's not a decision that is independent

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of other actors.

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Um, so for example, a judge in Spain,

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decided to pursue, potential,

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human rights prosecutions, involving Spanish nationals,

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in Argentina.

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Uh, and that put pressure, on the argentian,

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Argentinian government.

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Uh, at the time, a lot of people said,

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that's interfering with Argentina's sovereignty.

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Um, but of course, the amnesty decision itself was not like

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a unified decision by Argentina as a sovereign,

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it was a contested question, even within Argentina.

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And the new president at the time, Nestor Kirschner,

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was actually opposed to the amnesty decision.

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Uh, and so he could use the fact

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that Spain was possibly going to prosecute people

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as a prod within the Argentinian system to try

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to get the Argentinian Supreme Court

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to undo the amnesty decision.

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And that's actually what eventually happened.

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And so the sovereign state of Argentina made a decision

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to have an amnesty,

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and then the sovereign state

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of Argentina subsequently decided not to have the amnesty.

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But part of the reason that the sovereign state

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of Argentina changed was the pressure from

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outside was the assertion of jurisdiction

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by this Spanish judge.

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Now, the prosecution in Spain never actually went forward.

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Um, but that doesn't mean it didn't have an impact.

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It had an impact because it changed the facts on the ground.

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It changed the political, power struggle

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that was going on internally within Argentina.

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So we tend to think of, states as being just,

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on their own, unaffected by other activity,

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but they actually are, I'll give one more example.

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We sometimes, criticize international,

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agreements, let's

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Say international climate change agreements

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as not having enough teeth.

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They don't, require states to do anything.

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There's no court that's going to prosecute, states

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for not following, certain climate change commitments.

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But what we're now seeing in climate change litigation

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within countries is that courts are using

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the commitments that countries made

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in these climate change treaties as the basis

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for litigation.

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Uh, so for example, in Germany,

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there was litigation against the government,

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for not meeting its climate change obligations.

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And there was another litigation in, the Netherlands,

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about a company, that was contributing

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to global climate change, and

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therefore was causing a tort, was hurting the environment.

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Uh, and under just normal domestic tort law,

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a court used the standards from the international treaty,

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imported it into their local tort law,

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and allowed for the potential

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for litigation against a corporation

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that was contributing to climate change.

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So again, these things, even without formal,

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Enforcement Mechanisms,

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can actually have tremendous impact on the ground.

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Uh, and there's an interaction among the international,

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the domestic, the local, the industry standards.

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All of these things are interacting with each other

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in complicated ways. Um, that is not

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Captured In just a picture

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that only focuses on territory and sovereignty.

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The idea of, legal pluralism, as I said originally,

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was that it was really just studying

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what's happening in the world.

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You know, that the world Is more complicated than we

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tend to see. That we tend

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To Only focus on formal legal mechanisms,

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and we don't focus on informal legal mechanisms.

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Uh, and that was an important insight

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because if you are trying to understand,

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what is regulating people's behavior,

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sure you can pass a law to try

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to regulate people's behavior,

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but it may be that you will be more effective, in trying

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to change what religious leaders have to say about

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that behavior.

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Or you might be more effective by getting, you know,

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apple to, embed, those behaviors

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that you want to encourage into their iPhone so

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that more people will naturally move in that direction,

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Whether it's health Outcomes or whatever. Um,

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Sort of the same way We have cars that

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Beep at us if we don't buckle our seat belts, right?

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That's a technology that is regulating us.

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So part of global legal pluralism is just understanding

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all the different regulatory inputs.

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And that helps because if you're trying

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to address any problem in the world, you need

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to understand all the different regulatory inputs.

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If you wanna solve the problem,

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you can't only just pass a law or create a treaty

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or create a court,

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but more, nly, you might say that, look,

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there are these huge numbers of different communities,

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sub communities, legal systems, quasi-legal systems

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operating in the world.

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Uh, maybe you might want to create legal institutions,

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legal procedures, political bodies,

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that would encourage more interaction

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among those different communities,

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among those different, systems.

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The idea is that,

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we wanna create more dialogue across difference.

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Um, you know, in any given society, there are people

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who have different, beliefs from each other,

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and, we want to bring those people into dialogue.

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We don't want them throwing bombs at each other.

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We don't want them becoming terrorists.

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We don't want them shooting each other, ideally.

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Um, we'd much rather have them fighting with each other

303
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in a social space that they share.

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Maybe it's a legal dialogue,

305
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maybe it's a political dialogue,

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but better to have them in a shared social space.

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Um, the political theorist, Chantal Moof talked about,

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turning enemies into adversaries.

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The more enemies we can turn into adversaries, the better.

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Uh, so we might wanna create, as I said,

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procedural mechanisms or institutions that will facilitate

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dialogue and cooperation among multiple communities.

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So what kinds of things would that be?

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Well, you might wanna create multiple ports of entry,

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multiple spaces for contestation, so that,

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a voice not heard in one place instead

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of just not being heard at all,

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can find another space to be heard in.

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Uh, so one example, that,

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is very salient in the United States

321
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and some other countries is federalism, right?

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So you could have one nation state

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government, and that's it.

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Uh, but in the United States

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and in many other countries, that have federal systems,

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you not only have the federal government,

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but you have state governments.

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And there's a constant tension between

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what should be decided at the state level

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and what should be decided at the federal level.

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And voices not heard in one place might be

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heard in the other place.

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Innovations that might be unavailable in one place might be

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available in another place.

335
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Uh, and that actually might allow tensions

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and dialogue in the system to be worked out in the system

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as opposed to being worked out,

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by the nation state saying, this is the law.

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And a lot of people resisting it here, it allows

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for more maneuvering.

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Another example, in the European Court of Human Rights,

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they have a doctrine that's controversial, known

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as the Margin of Appreciation doctrine.

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The idea is that, the European Court

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of Human Rights is articulating, let's say, a new right,

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that or, or an expansion of a right that,

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they think is protected, under European law.

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Uh, but they, instead of just imposing it

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or trying to impose it on all of the domestic systems,

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they might say, you know, we recognize

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that there's differences of culture

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and there's different of hi differences of history,

353
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and there's different, differences of politics.

354
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And so we're going to articulate this new right,

355
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but we're gonna give a little margin of appreciation,

356
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a little bit of wiggle room, so that maybe,

357
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you can move towards that, right?

358
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You domestic courts as your local context

359
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and culture allows.

360
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And, you know, this is sometimes criticized from both sides.

361
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Uh, so international human rights people say

362
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that's not aggressive enough at pursuing the right,

363
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and nation state Sovereigntists might say,

364
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I don't want an international body telling me

365
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what the rights are at all.

366
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Uh, but by articulating it,

367
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but giving the margin, maybe that's the best of both worlds,

368
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because it allows for the international community

369
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to articulate a right,

370
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but it also gives space for the local community to say,

371
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we actually have, a different culture,

372
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a different history, and, but we can't ignore the right.

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We have to be in dialogue with the right,

374
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I would argue could be actually better

375
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than either the international body, not existing at all,

376
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or the international body existing,

377
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but trying to impose its will,

378
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and generating fierce resistance

379
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that might result in the whole system collapsing.

380
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Um, and so sometimes dialogue across difference is actually

381
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better, more profitable, more likely to turn into a world

382
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where enemies, become adversaries, than a system,

383
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that tries to impose things hierarchically.

384
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I would say with liberal democracy,

385
00:20:20.495 --> 00:20:25.235
it maybe draws from Jurgen Habermas idea of a dialogic,

386
00:20:25.615 --> 00:20:28.275
conception of, liberalism.

387
00:20:28.895 --> 00:20:31.835
Uh, but I think it's also different from classic

388
00:20:31.905 --> 00:20:33.075
liberal democracy.

389
00:20:33.615 --> 00:20:36.195
Um, so just to give an example, so let's say that

390
00:20:36.715 --> 00:20:38.395
a town council,

391
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and in this town, let's say 75%

392
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of the people were from one ethnic group,

393
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and 25% were from another ethnic group,

394
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and you have six spots on the town council,

395
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and you have a majority vote for each of them.

396
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And, in that system, you could imagine that all six

397
00:20:58.365 --> 00:21:01.125
of the people getting elected would be from the dominant

398
00:21:01.385 --> 00:21:04.205
ethnic group and under liberal democracy,

399
00:21:04.905 --> 00:21:07.245
nor as normally, understood.

400
00:21:07.705 --> 00:21:08.885
Uh, as long as

401
00:21:08.915 --> 00:21:12.725
that six person town council didn't violate the rights

402
00:21:13.265 --> 00:21:16.205
of the 25%, the minority ethnic group,

403
00:21:16.585 --> 00:21:17.685
that would be okay.

404
00:21:17.795 --> 00:21:21.205
It's a majoritarian, decision to have six people.

405
00:21:21.825 --> 00:21:23.525
Uh, and they all happen

406
00:21:23.525 --> 00:21:25.445
to be elected from the same ethnic group.

407
00:21:25.465 --> 00:21:27.205
And as long as they don't violate the rights

408
00:21:27.205 --> 00:21:29.925
of the minority group, that would be permissible.

409
00:21:30.465 --> 00:21:33.005
Uh, global legal pluralism would say, well,

410
00:21:33.025 --> 00:21:35.525
it might be permissible, but it's not preferable.

411
00:21:36.025 --> 00:21:38.645
Um, and that maybe we might want to, for instance,

412
00:21:38.785 --> 00:21:43.285
set aside one of those seats for the other eth ethnic group,

413
00:21:43.705 --> 00:21:46.845
or maybe we want, might wanna have rank choice voting

414
00:21:47.145 --> 00:21:48.765
or proportional representation

415
00:21:49.145 --> 00:21:53.565
or some other procedural mechanism that would give that

416
00:21:54.245 --> 00:21:57.565
minority group a seat at the table, to be able

417
00:21:57.565 --> 00:22:02.205
to be part of the discussion, rather than,

418
00:22:02.435 --> 00:22:04.165
have them just on the outside

419
00:22:04.225 --> 00:22:06.445
and maybe their rights are protected and maybe they aren't,

420
00:22:06.445 --> 00:22:07.725
but they don't really have a voice

421
00:22:08.265 --> 00:22:09.805
in the governmental system.

422
00:22:10.065 --> 00:22:11.285
So I think in that sense,

423
00:22:11.285 --> 00:22:13.365
global legal pluralism is different

424
00:22:13.465 --> 00:22:15.845
as a normative project than liberal democracy,

425
00:22:15.985 --> 00:22:18.685
but I think it's consonant with liberal democracy.

426
00:22:19.855 --> 00:22:22.515
It tends to get criticisms from both sides.

427
00:22:23.055 --> 00:22:27.775
Uh, so, nation state sovereigntists,

428
00:22:27.885 --> 00:22:31.855
tend to be upset, that we are emphasizing,

429
00:22:31.875 --> 00:22:35.375
we meaning plurals are emphasizing all of these other things

430
00:22:35.925 --> 00:22:38.895
that have real impact on the world.

431
00:22:39.275 --> 00:22:41.495
Uh, and they say those are not real law,

432
00:22:41.795 --> 00:22:43.775
or those don't really have,

433
00:22:43.835 --> 00:22:47.215
or shouldn't have any real impact, on the world.

434
00:22:47.765 --> 00:22:50.015
It's only the nation state

435
00:22:50.275 --> 00:22:52.535
and our legal rules that should matter,

436
00:22:52.535 --> 00:22:56.295
and you're giving too much play, to these other systems,

437
00:22:56.915 --> 00:22:58.495
these other possibilities.

438
00:22:59.035 --> 00:23:03.175
Um, in contrast, strong international

439
00:23:03.755 --> 00:23:08.735
law people, tend not to like, the, some, some

440
00:23:08.735 --> 00:23:11.095
of the statements of legal plural list,

441
00:23:11.095 --> 00:23:15.295
because we tend to put, for instance, international law

442
00:23:16.035 --> 00:23:20.975
on the same level as nation state law, religious law,

443
00:23:20.975 --> 00:23:24.895
corporate codes, and technological codes

444
00:23:24.915 --> 00:23:28.055
and so forth, as all things that regulate behavior.

445
00:23:28.515 --> 00:23:31.775
Uh, and they tend to wanna say, no, international law is

446
00:23:33.715 --> 00:23:35.875
superior law and should govern.

447
00:23:36.575 --> 00:23:41.115
Um, and the problem is that legal plurals say there's no

448
00:23:41.835 --> 00:23:45.965
arch median point outside of the world where I can sit

449
00:23:46.065 --> 00:23:48.125
and say, this rule should govern,

450
00:23:48.305 --> 00:23:49.725
and that rule shouldn't govern.

451
00:23:49.995 --> 00:23:52.205
This is the hierarchically superior rule,

452
00:23:52.505 --> 00:23:55.005
and that's the hierarchically inferior rule.

453
00:23:55.595 --> 00:23:57.245
Fundamentally, people

454
00:23:57.265 --> 00:24:00.005
who criticize legal pluralism want more certainty,

455
00:24:00.005 --> 00:24:04.595
they want more definitiveness, and I understand that.

456
00:24:05.135 --> 00:24:09.035
But the reality that legal pluralism, I think recognizes

457
00:24:09.615 --> 00:24:11.555
is there is no definitiveness.

458
00:24:11.705 --> 00:24:13.355
There's always contestation.

459
00:24:13.935 --> 00:24:16.915
You could create a world government that,

460
00:24:18.755 --> 00:24:21.695
you know, theoretically, creates rules

461
00:24:21.925 --> 00:24:23.935
that would govern the whole world.

462
00:24:24.595 --> 00:24:26.495
As soon as you create the first rule,

463
00:24:26.785 --> 00:24:28.575
there will be resistance to that rule.

464
00:24:28.865 --> 00:24:32.335
There will be folks who will contest that rule.

465
00:24:32.545 --> 00:24:35.655
There will be folks who will, when they apply

466
00:24:35.655 --> 00:24:38.335
that rule change the way it gets applied

467
00:24:38.475 --> 00:24:39.655
in very subtle ways.

468
00:24:40.315 --> 00:24:44.135
Uh, there will be, people who say, I'm not actually part

469
00:24:44.135 --> 00:24:45.215
of your government at all.

470
00:24:45.355 --> 00:24:46.655
I'm gonna break away from it.

471
00:24:47.195 --> 00:24:50.535
Uh, so immediately you will start getting pluralism.

472
00:24:51.035 --> 00:24:52.735
The pluralism never ends.

473
00:24:53.235 --> 00:24:56.335
The decision by a supreme court is not the end

474
00:24:56.515 --> 00:24:57.735
of the conversation.

475
00:24:58.205 --> 00:25:00.895
It's the beginning of the next con conversation.

476
00:25:01.395 --> 00:25:03.135
The contestation never ends.

477
00:25:03.435 --> 00:25:07.775
And you can't get to a place outside a system

478
00:25:08.105 --> 00:25:11.495
where you can say, this rule wins, and that rule doesn't win

479
00:25:11.525 --> 00:25:14.775
because you can say it, but people will resist it.

480
00:25:14.915 --> 00:25:19.055
And so you have to constantly be aware of that resistance.

481
00:25:19.675 --> 00:25:23.815
And I think that you can use that resistance

482
00:25:23.955 --> 00:25:27.055
and say, rather than just trying to impose my order,

483
00:25:27.715 --> 00:25:31.135
can we figure out ways in which we can have a dialogue,

484
00:25:31.435 --> 00:25:32.575
across that order?

485
00:25:33.075 --> 00:25:37.255
Now, are there substantive values that somebody might have?

486
00:25:37.595 --> 00:25:39.095
Of course, there are substantive values

487
00:25:39.125 --> 00:25:41.975
that somebody might have, and they could push them,

488
00:25:42.155 --> 00:25:43.735
and others could resist them,

489
00:25:43.735 --> 00:25:45.015
and we could have contestation.

490
00:25:45.035 --> 00:25:48.735
So it's not that substantive values don't exist, it's that

491
00:25:49.475 --> 00:25:52.375
I'm not in a position to be able to say, this one wins

492
00:25:52.435 --> 00:25:53.735
and that one doesn't win.

493
00:25:54.275 --> 00:25:56.655
No one's in a position to say, this one wins

494
00:25:56.675 --> 00:25:57.895
and that one doesn't win.

495
00:25:58.195 --> 00:26:01.415
We have to understand that it's all always contested,

496
00:26:02.215 --> 00:26:03.955
and so we can push for what we want.

497
00:26:03.975 --> 00:26:05.275
That's a political struggle.

498
00:26:05.775 --> 00:26:09.075
Uh, but in order to understand what's going on in our legal

499
00:26:09.075 --> 00:26:10.595
system, we have to understand

500
00:26:10.595 --> 00:26:13.675
that it's constantly contested at every level.

501
00:26:14.015 --> 00:26:17.235
If we wanna turn more enemies into adversaries,

502
00:26:17.695 --> 00:26:21.315
we might want to, instead of resisting that contestation,

503
00:26:22.075 --> 00:26:23.795
actually embrace that contestation

504
00:26:24.375 --> 00:26:27.755
and provide more ways for that contestation

505
00:26:27.755 --> 00:26:31.635
to work out within the system, as opposed to people

506
00:26:32.285 --> 00:26:34.195
struggling outside the system

507
00:26:34.735 --> 00:26:36.475
and dropping bombs on each other.

Understanding Legal Pluralism: Beyond Nation-State Regulations

00:00:00 - Legal pluralism is the idea that in any given social space, any given context, there isn't only one thing that regulates us. so we tend to think of the nation state or a state within a federal system, passing laws that regulate us. but there are lots of other things that regulate our behavior on a day-to-day basis. they could be religious codes, they could be corporate codes of conduct, in,

00:00:36 - you would have a colonial power that would come in, let's say, great Britain into India, and they would impose a new legal system. But the indigenous legal system never completely disappears in places where the state is not that strong. You could have warlords, you could have tribal leaders. and nowadays we're regulated a lot, by our technology. There are things you can do with your phone

00:01:07 - and that has nothing to do with law, the way we tend to think of law. but it certainly regulates our behavior. And so legal plurals, in anthropology or in political theory, we're always interested in studying the interaction among legal systems or among legal and quasi-legal systems. and so that's what legal pluralism focused on.

Exploring Legal Pluralism in a Global Context

00:01:38 - that in any given context, you can't just look at, the formal legal system. You actually have to look at all the things that are going on in society, if you wanna see both the contestation that's going on in society, as well as all the things that regulate us. Now, in the 1990s, in the immediate post Cold War period, there were a group of scholars of which I was one, that, began

00:02:09 - to study the global legal environment. So, legal pluralism had historically been a kind of local, study that you would look at a particular, locality and look at all the legal and quasi-legal, regulatory, systems that might be operating there. But in the post Cold War era, there were a huge number of new international tribunals. there were big international corporate codes of conduct

00:02:39 - there were, attempts to assert, more, universal jurisdiction, over war criminals or others who had committed international human rights crimes. And there was the rise of the internet, and the idea that maybe nation states, wouldn't be so capable of regulating, all of this behavior, much of which doesn't have a territorial location. So the idea was that even in,

Regulatory Interactions and Legal Pluralism

00:03:10 - and the interaction of nation states and the interaction of, formal law, you needed to actually look at all the different regulatory mechanisms that might be in existence, and see how, sovereignty or conceptions of nation state sovereignty might be challenged, in this environment. And also with the rise of technology, that there were areas where states might actually have difficulty regulating

00:03:44 - in regulating for better or worse. and, so this is not a statement that, pluralism is either good or bad, but it is a reality. And if you want to understand what is regulating our behavior at any given moment, we have to not only think of our own nation, our own locality, and the formal laws. We have to think of all the different regulatory inputs,

00:04:14 - and all of that goes into figuring out what regulates our behavior on a day-to-day basis. So legal pluralism and global legal pluralism is focused on those interactions. If you think about, for example, the interaction of state law and technology. so, you know, in the United States, we have a copyright law, and the copyright law has an idea of fair use.

Navigating Copyright Law and Technological Boundaries in Education

00:04:46 - for instance, I, as an educator could do. I could, show a clip of a film in my class in order to illustrate some point, and comment on it. and that would not be a copyright violation, even though it was a public showing of the work, because it would be considered a fair use. And there if therefore it would be permitted. But if I wanna show a clip of a movie in my class, and it's beyond, behind an Amazon paywall

00:05:19 - that the copyright law would allow me to do it. I literally can't do it unless I illegally hack around, apple or Amazon's paywall. I'm gonna have to pay, whatever the fee is, in order to use that movie. So that's an example of a technological law, if you will, that is stronger in certain ways, than the nation state copyright law.

00:05:53 - but you could also look at, the interaction, for instance of, state and, technological law in, the European Union. The European Union, the European, court of human rights, created an idea of, let, let me go back. The, you can look at in Europe, the European Court of Justice, created this idea of a right to be forgotten

Territorial Limitations and the Right to Be Forgotten

00:06:28 - but it's no longer really historically relevant, and, it's something that you want removed, from a website, let's say, you have a right to be forgotten. You have a right to remove some of that material, particularly if there's no public interest anymore in that material. but, the European Court of Justice can't enforce that order beyond Europe,

00:06:57 - limitations based on territory and sovereignty. but it can ask Google to make it so that if you search for that person's name in a Google search, it simply doesn't come up. It's not that the website doesn't exist, it's just it doesn't show up in the search. and that's equivalent to eliminating that website or that name in that website

00:07:26 - And so that's an example of a, a European court leveraging a technology company, to expand, its regulatory power beyond its own territory, beyond its own sovereignty. and so we need to understand, these kinds of regulatory interactions. and we can't just assume that we live in a world where every state operates within its own boundaries,

Navigating the Complex Landscape of Global Legal Pluralism

00:08:00 - and every state is hermetically sealed from the other. We actually live in a world that's much more fluid, that has much more contestation, that has much more overlap, among, regulatory systems. It certainly is the case that, it's a complicated world that we live in. and, you could think that, maybe, you know,

00:08:30 - It's not that global legal pluralism makes it more complicated. The world is complicated. we live in a world where, we sometimes assume that jurisdictional rules are fixed, and that territory is the defining feature of law. but we actually live in a law, in a world where there's a lot of interactivity, among these legal systems. And no legal system has

00:09:02 - without any input from beyond. So, just to give a couple of examples. so, you could say that, a country, let's say Argentina, has sovereignty and it can make decisions. and, at one point, Argentina decided, that it was going to give amnesty, to all of the members of the military

Interplay of Sovereignty and External Influence in Argentina's Amnesty Decision

00:09:32 - abuses in the past. and that that was a way we were going to move forward. And Argentina decided it, and it was a sovereign country making a sovereign decision. but of course, that's not a decision that is independent of other actors. so for example, a judge in Spain, decided to pursue, potential, human rights prosecutions, involving Spanish nationals,

00:10:04 - and that put pressure, on the argentian, Argentinian government. at the time, a lot of people said, that's interfering with Argentina's sovereignty. but of course, the amnesty decision itself was not like a unified decision by Argentina as a sovereign, it was a contested question, even within Argentina. And the new president at the time, Nestor Kirschner, was actually opposed to the amnesty decision.

00:10:36 - that Spain was possibly going to prosecute people as a prod within the Argentinian system to try to get the Argentinian Supreme Court to undo the amnesty decision. And that's actually what eventually happened. And so the sovereign state of Argentina made a decision to have an amnesty, and then the sovereign state of Argentina subsequently decided not to have the amnesty.

External Pressures and Internal Changes: The Impact of Jurisdiction and Climate Law

00:11:09 - of Argentina changed was the pressure from outside was the assertion of jurisdiction by this Spanish judge. Now, the prosecution in Spain never actually went forward. but that doesn't mean it didn't have an impact. It had an impact because it changed the facts on the ground. It changed the political, power struggle that was going on internally within Argentina.

00:11:40 - on their own, unaffected by other activity, but they actually are, I'll give one more example. We sometimes, criticize international, agreements, let's Say international climate change agreements as not having enough teeth. They don't, require states to do anything. There's no court that's going to prosecute, states for not following, certain climate change commitments.

00:12:10 - within countries is that courts are using the commitments that countries made in these climate change treaties as the basis for litigation. so for example, in Germany, there was litigation against the government, for not meeting its climate change obligations. And there was another litigation in, the Netherlands,

Interplay of Legal Systems and Environmental Accountability

00:12:45 - to global climate change, and therefore was causing a tort, was hurting the environment. and under just normal domestic tort law, a court used the standards from the international treaty, imported it into their local tort law, and allowed for the potential for litigation against a corporation

00:13:13 - So again, these things, even without formal, Enforcement Mechanisms, can actually have tremendous impact on the ground. and there's an interaction among the international, the domestic, the local, the industry standards. All of these things are interacting with each other in complicated ways. that is not

00:13:43 - that only focuses on territory and sovereignty. The idea of, legal pluralism, as I said originally, was that it was really just studying what's happening in the world. You know, that the world Is more complicated than we tend to see. That we tend To Only focus on formal legal mechanisms, and we don't focus on informal legal mechanisms. and that was an important insight because if you are trying to understand,

Regulatory Influence Beyond Law: Embracing Pluralism in Society

00:14:16 - sure you can pass a law to try to regulate people's behavior, but it may be that you will be more effective, in trying to change what religious leaders have to say about that behavior. Or you might be more effective by getting, you know, apple to, embed, those behaviors that you want to encourage into their iPhone so that more people will naturally move in that direction,

00:14:48 - Sort of the same way We have cars that Beep at us if we don't buckle our seat belts, right? That's a technology that is regulating us. So part of global legal pluralism is just understanding all the different regulatory inputs. And that helps because if you're trying to address any problem in the world, you need to understand all the different regulatory inputs. If you wanna solve the problem, you can't only just pass a law or create a treaty

00:15:18 - but more, nly, you might say that, look, there are these huge numbers of different communities, sub communities, legal systems, quasi-legal systems operating in the world. maybe you might want to create legal institutions, legal procedures, political bodies, that would encourage more interaction among those different communities, among those different, systems.

Fostering Dialogue Across Differences

00:15:50 - we wanna create more dialogue across difference. you know, in any given society, there are people who have different, beliefs from each other, and, we want to bring those people into dialogue. We don't want them throwing bombs at each other. We don't want them becoming terrorists. We don't want them shooting each other, ideally. we'd much rather have them fighting with each other in a social space that they share.

00:16:20 - maybe it's a political dialogue, but better to have them in a shared social space. the political theorist, Chantal Moof talked about, turning enemies into adversaries. The more enemies we can turn into adversaries, the better. so we might wanna create, as I said, procedural mechanisms or institutions that will facilitate dialogue and cooperation among multiple communities. So what kinds of things would that be?

00:16:53 - multiple spaces for contestation, so that, a voice not heard in one place instead of just not being heard at all, can find another space to be heard in. so one example, that, is very salient in the United States and some other countries is federalism, right? So you could have one nation state government, and that's it. but in the United States and in many other countries, that have federal systems,

Balancing State and Federal Authority: The Margin of Appreciation

00:17:25 - but you have state governments. And there's a constant tension between what should be decided at the state level and what should be decided at the federal level. And voices not heard in one place might be heard in the other place. Innovations that might be unavailable in one place might be available in another place. and that actually might allow tensions and dialogue in the system to be worked out in the system as opposed to being worked out,

00:17:57 - And a lot of people resisting it here, it allows for more maneuvering. Another example, in the European Court of Human Rights, they have a doctrine that's controversial, known as the Margin of Appreciation doctrine. The idea is that, the European Court of Human Rights is articulating, let's say, a new right, that or, or an expansion of a right that, they think is protected, under European law.

00:18:29 - or trying to impose it on all of the domestic systems, they might say, you know, we recognize that there's differences of culture and there's different of hi differences of history, and there's different, differences of politics. And so we're going to articulate this new right, but we're gonna give a little margin of appreciation, a little bit of wiggle room, so that maybe, you can move towards that, right? You domestic courts as your local context

Navigating Tensions: Dialogue between Human Rights and Sovereignty

00:19:01 - And, you know, this is sometimes criticized from both sides. so international human rights people say that's not aggressive enough at pursuing the right, and nation state Sovereigntists might say, I don't want an international body telling me what the rights are at all. but by articulating it, but giving the margin, maybe that's the best of both worlds, because it allows for the international community

00:19:31 - but it also gives space for the local community to say, we actually have, a different culture, a different history, and, but we can't ignore the right. We have to be in dialogue with the right, I would argue could be actually better than either the international body, not existing at all, or the international body existing, but trying to impose its will, and generating fierce resistance

00:20:02 - and so sometimes dialogue across difference is actually better, more profitable, more likely to turn into a world where enemies, become adversaries, than a system, that tries to impose things hierarchically. I would say with liberal democracy, it maybe draws from Jurgen Habermas idea of a dialogic, conception of, liberalism. but I think it's also different from classic

Ensuring Inclusive Representation in Town Councils

00:20:33 - so just to give an example, so let's say that a town council, and in this town, let's say 75% of the people were from one ethnic group, and 25% were from another ethnic group, and you have six spots on the town council, and you have a majority vote for each of them. And, in that system, you could imagine that all six of the people getting elected would be from the dominant ethnic group and under liberal democracy,

00:21:07 - as long as that six person town council didn't violate the rights of the 25%, the minority ethnic group, that would be okay. It's a majoritarian, decision to have six people. and they all happen to be elected from the same ethnic group. And as long as they don't violate the rights of the minority group, that would be permissible. global legal pluralism would say, well, it might be permissible, but it's not preferable.

00:21:38 - set aside one of those seats for the other eth ethnic group, or maybe we want, might wanna have rank choice voting or proportional representation or some other procedural mechanism that would give that minority group a seat at the table, to be able to be part of the discussion, rather than, have them just on the outside and maybe their rights are protected and maybe they aren't,

Navigating Criticism: Legal Pluralism vs. National Sovereignty

00:22:08 - in the governmental system. So I think in that sense, global legal pluralism is different as a normative project than liberal democracy, but I think it's consonant with liberal democracy. It tends to get criticisms from both sides. so, nation state sovereigntists, tend to be upset, that we are emphasizing, we meaning plurals are emphasizing all of these other things that have real impact on the world.

00:22:41 - or those don't really have, or shouldn't have any real impact, on the world. It's only the nation state and our legal rules that should matter, and you're giving too much play, to these other systems, these other possibilities. in contrast, strong international law people, tend not to like, the, some, some of the statements of legal plural list,

00:23:16 - on the same level as nation state law, religious law, corporate codes, and technological codes and so forth, as all things that regulate behavior. and they tend to wanna say, no, international law is superior law and should govern. and the problem is that legal plurals say there's no

Endless Contestation in Legal Pluralism

00:23:46 - and say, this rule should govern, and that rule shouldn't govern. This is the hierarchically superior rule, and that's the hierarchically inferior rule. Fundamentally, people who criticize legal pluralism want more certainty, they want more definitiveness, and I understand that. But the reality that legal pluralism, I think recognizes is there is no definitiveness. There's always contestation.

00:24:18 - you know, theoretically, creates rules that would govern the whole world. As soon as you create the first rule, there will be resistance to that rule. There will be folks who will contest that rule. There will be folks who will, when they apply that rule change the way it gets applied in very subtle ways. there will be, people who say, I'm not actually part

00:24:45 - I'm gonna break away from it. so immediately you will start getting pluralism. The pluralism never ends. The decision by a supreme court is not the end of the conversation. It's the beginning of the next con conversation. The contestation never ends. And you can't get to a place outside a system where you can say, this rule wins, and that rule doesn't win because you can say it, but people will resist it.

Embracing Contestation: Dialogue in Legal Pluralism

00:25:19 - And I think that you can use that resistance and say, rather than just trying to impose my order, can we figure out ways in which we can have a dialogue, across that order? Now, are there substantive values that somebody might have? Of course, there are substantive values that somebody might have, and they could push them, and others could resist them, and we could have contestation.

00:25:49 - I'm not in a position to be able to say, this one wins and that one doesn't win. No one's in a position to say, this one wins and that one doesn't win. We have to understand that it's all always contested, and so we can push for what we want. That's a political struggle. but in order to understand what's going on in our legal system, we have to understand that it's constantly contested at every level. If we wanna turn more enemies into adversaries,

00:26:34 - actually embrace that contestation and provide more ways for that contestation to work out within the system, as opposed to people struggling outside the system and dropping bombs on each other.

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