A Pluralist Account of Legal Interactionism

Abstract

Two of the phenomena that challenge theories of law in the beginning of the twenty-first century are the regulatory explosion and the emergence of horizontal and interactional forms of law. In this paper, I discuss how to develop a theory of law that can address these two phenomena. I argue that legal interactionism (inspired by the work of Fuller, Selznick, and Brunnee and Toope) provides the best starting point to answer to those challenges as it can take interactional law seriously. In a pluralist approach, legal interactionism recognises both interactional law and enacted law, as well as other sources such as contract and treaty. We should aim for a pluralistic and variable understanding of the characteristics of law. A dynamic understanding of Wittgenstein’s family resemblance metaphor is illuminating here. As a variety of conceptions of law is possible, different stipulative definitions may highlight different aspects of the complex phenomenon of law. Legal interactionism advocates what we may call soft or relative legal pluralism. The legal orders are no insulated orders, but are open and are quite closely knit together. Because of this pluralist character, legal interactionism can do justice to both an enormous body of state enacted law and the emergence of interactional law in various areas of law, including international law. Moreover, it can also do justice to global legal pluralism.