Fragments and Continuities of Law and ICT: A Pragmatist Approach to Understanding Legal Pluralism

Abstract

Regulation of the Internet is a favorite example of legal scholars who argue that law is a globalized phenomenon (Berman 2007, p. 316; Fischer-Lescano & Teubner 2004, pp. 1010–11; Michaels 2009, p. 247). Internet law is fascinating from a legal theoretical perspective because it shows clearly that it is problematic to use state law to govern a global network, and that it is equally problematic to find international or non-state forms of law capable of regulating it adequately. It is therefore not surprising that many attempts to conceptualize problems of law and Internet do so on the basis of a theory of legal pluralism. Theories of legal pluralism take the plurality of law seriously and theorize about what legal pluralism means. This conceptual exercise is then related back to digital phenomena, which, I would argue, is a fruitful way to account for and understand Internet law. There is, however, not one way of theorizing the plurality of law. Different conceptualizations of legal pluralism are on offer, which take rather different starting points. One of the points about which theories of legal pluralism differ relates to the boundaries of legal orders: should we see these as closed systems, or as open and flexible? In this paper, I will take this issue as central to discussing the nature of legal pluralism. With respect to the topic of this volume, the question then is which conceptualization is the most convincing when it comes to understanding the pluralism of normative orders.