Descriptive vs. prescriptive global legal pluralism: a gentle reminder of David Hume’s is–ought divide

Abstract

In [almost all of the analyses of global legal pluralism], which I have hitherto met with, I have always remark’d, that the author proceeds for some time in the ordinary ways of reasoning, and establishes [the existence of “global legal pluralism”], or makes observations concerning [the “global Bukowina” regarding international] human affairs; when of a sudden I am surpriz’d to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is however, of the last consequence. (Hume 1738, book III, part I, ch. I)Pointing at David Hume’s powerful insight, this article aims to remind us of the necessity of sharply distinguishing between global legal pluralism as the description of recent factual developments, drawing attention for example, towards the massive increase in international actors, norms and tribunals as well as adjudicators on the one hand. And, on the other hand, as a different issue, the question of how we ought to deal with or even solve those legal conflicts (based on a (common) framework) resulting from these plural, overlapping legal claims. The “normative move” in the global legal pluralism debate asks for sufficient justification for its normative claims. This article concludes that the is – ought divide is respected at best if prescriptive proposals to solve legal conflicts are not termed “pluralistic.” Instead, I shall suggest, it is more precise to refer to a necessarily common framework which addresses the question as to how those conflicts should be resolved together or at least in a way acceptable to all parties. Finally, this article holds that this common framework depends hugely on the context. Thus, solutions are more likely to be found if we focus on specific contexts instead of drawing on universal solutions for different situations.