Nomos Without Narrative

Abstract

The three central themes underlying this issue of Theoretical Inquiries in Law—the privatization of law model, the legal pluralism paradigm, and multiculturalism — are united in their shared opposition, be it descriptive or normative, to the monopolistic concentration of law production power in the hands of the state. The three models focus on dispersion of the social ordering function amongst non-state agents. They advocate the claim that the state has not succeeded at securing a monopoly over law and/or should not secure a monopoly over law. On the policy front, as well, protagonists of the privatization of law model, scholars of the legal pluralism paradigm and writers in the multiculturalism tradition often unite in their plea for recognition of tribal courts or the expansion of the lawmaking capacity of local governments. However, despite their shared underlying assumption that the centralist state law model lacks normative appeal, these three bodies of research diverge significantly. The differences between them have been marginalized in the debate, because each of these models has essentially concentrated on conducting the dialogue with the state law model. Thus far, these models have been solely occupied with taking a particular stance against the centralization model of state law, and have failed to engage in any debate amongst themselves as representatives of alternative legal decentralization schemes. This Article attempts to partially fill the void, by pitting the multiculturalism model of legal decentralization against the privatization model. It will show that the differences in both models’ legal decentralization visions derive from conflicting ontological premises regarding law, community, social life, and the human subject. These theoretical distinctions, which will be drawn between the two decentralization models, have great bearing when considering the social units that ought to supplant the state in its lawmaking capacity.