The limits of normative legal pluralism : review of Paul Schiff Berman, global legal pluralism : a jurisprudence of law beyond borders

Abstract

It is now commonplace to explore the myriad ways in which globalization has engendered changes in the structures and sources of law. Of course, the concept of “globalization” is not uncontested: one cannot always be entirely certain what globalization really entails or what kind of phenomena it comprises. Yet, it is uncontested that we are in a transition period in which the traditional conceptions of law are insufficient for capturing the present shifts in the contours of law and the role of the state in the process of the production of legal norms. Lest one think this is all a matter for municipal law, international law has not escaped these shifts either. The explosion of legal normativity in quantitative and qualitative terms in the supranational arena has affected the basic tenets and underpinnings of international law. This transformation can be easily noticed within the realm of scholarship. In a period of 20 years, international law has gone from a state of affirmation to the possibility of disappearance, to a state of uncertain calm in which it is not clear what the next paradigm will be. The only certainty is the presence of a renegotiation of the structural conditions in which legal normativity is being produced. Beyond that, nothing is certain. In order to make sense of this “disorder of normative orders,” several normative proposals have been advanced. The most prominent one—in terms of ink spilled for and against it—has come from the constitutionalization camp. Under this rubric, legal scholars argue that international law is in the process of being (or should be) “constitutionalized.” Of course, there is much diversity of opinion within this camp. Nevertheless, there is clearly a common core that can be discerned: the desire to extend the typical elements from state constitutional law in liberal democracies to the international legal order. In this vein, enthusiasts promote a reading of international law in which the features of constitutional law are transposed and adapted to the supranational domain. One of the leading figures in advancing this discourse is Mattias Kumm. In an ever-developing corpus, he expounds his vision of a political order in which constitutional principles dictate the production of legality.