Two Conceptions of Pluralist Jurisprudence

Abstract

As understood here, pluralist jurisprudence is the study of the legal principles and doctrines that govern disputes about the division of authoritative labor between legal systems. So construed, pluralist jurisprudence speaks to a wide range of issues, including the existence and scope of the legal authority that international customs and international legal institutions, such as the European Court of Human Rights, the WTO, the U.N. Security Council, have over state-actors. Here, I explicate and contrast two conceptions of pluralist jurisprudence. The first is a positivist conception that distinguishes between legal and political authority, thereby drawing a clear line between pluralist jurisprudence and pluralist political philosophy. The second is a non-positivist conception that reduces questions about the legal authority of international institutions and customs to questions about whether such institutions and customs possess a distinctive form of authority — namely, political authority as characterized by the generic collectivist conception explicated below. The core objective of this paper is to clarify what I take to be the most formidable and well-supported non-positivist and positivist conceptions of pluralist jurisprudence and to highlight three key points of contrast. First, whereas the non-positivist conception incorporates deliberations about the legitimacy and scope of political authority into legal reasoning, the positivist conception excludes such considerations. Thus, these two conceptions provide officials with very different frames for their legal reasoning about rival claims to legal authority, and accordingly, these conceptions support significantly different legal conclusions. Second, the differences between these conceptions of pluralist jurisprudence are in large part driven by a more fundamental disagreement about the nature of political community and political authority. Third, given this fundamental disagreement, these two conceptions of pluralist jurisprudence do not merely entail different approaches to legal reasoning about the existence and scope of legal authorities; they also entail different frames for legal officials’ politico-moral reasoning about the legitimacy and scope of political authority.