Global Legal Pluralism Research Articles

Legal Hybridity in the Philippines: Lessons in Legal Pluralism from Mindanao and the Sulu Archipelago

From Kurds in Afghanistan to Muslims in the Philippines, we live in a world in which normative obligations do not always follow political boundaries. For a variety of political, economic, and social reasons, people sometimes find themselves residents of a state they neither helped create nor voluntarily joined. What allegiance do such people owe to the legal systems of the states to which they belong? Should they be permitted to adopt and follow proprietary legal codes that conform to cultural norms but exist distinct from national jurisprudential schemes? As nations throughout the world struggle to find plural solutions to normative conflict, these questions are of vital importance to subnational and supranational legal regimes. In this Article, I explore these issues by drawing on legal pluralism as a methodology to analyze subnational normative conflict. I do so by engaging in a case study of the Philippines, a country which has been a hotbed of conflict for more than 400 years. I first address the mechanisms employed by Spanish and American colonizers in responding to normative conflict in Mindanao and the Sulu Archipelago. I then proceed to a discussion of the steps taken by the Philippine government to formally recognize Muslim normative obligations, including the adoption of Presidential Decree 1083, the Muslim Code of Personal Laws. Finally, I review the Philippine government’s approach to legal hybridity in the context of four practices identified by Paul Schiff Berman in Global Legal Pluralism: dialectical discourse, margins of appreciation, jurisdictional redundancy, and limited autonomy regimes. I conclude by suggesting that the Philippine government’s approach, though less than fully realized, models the possible benefits of pluralism in a normatively complex and contentious hybrid society.

Global Legal Pluralism

Some challenges of legal globalization closely resemble those formulated earlier for legal pluralism: the irreducible plurality of legal orders, the coexistence of domestic state law with other legal orders, the absence of a hierarchically superior position transcending the differences. This review discusses how legal pluralism engages with legal globalization and how legal globalization utilizes legal pluralism. It demonstrates how several international legal disciplines—comparative law, conflict of laws, public international law, and European Union law—have slowly begun to adopt some ideas of legal pluralism. It shows how traditional themes and questions of legal pluralism—the definition of law, the role of the state, of community, and of space—are altered under conditions of globalization. It addresses interrelations between different legal orders and various ways, both theoretical and practical, to deal with them. And it provides an outlook on the future of global legal pluralism as theory and practice of global law.

Global Legal Pluralism and Multipolar Conflicts: A Review of Oren Perez's “Sensitivity and Global Legal Pluralism: Rethinking the Trade and Environment Conflict“

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Ecological Sensitivity and Global Legal Pluralism: Rethinking the Trade and Environment Conflict. By Oren Perez. Oxford and Portland, Oregon: Hart Publishing, 2004. 290 pp 42

Ecological Sensitivity and Global Legal Pluralism: Rethinking the Trade and Environment Conflict. By Oren Perez. Oxford and Portland, Oregon: Hart Publishing, 2004. 290 pp 42

Ecological Sensitivity and Global Legal Pluralism--Rethinking the Trade and Environment Conflict. By OREN PEREZ [Oxford, Hart Publishing, 2004, 288 pp, ISBN 1 84113 348 5, Hardback, 42

In Ecological Sensitivity and Global Legal Pluralism , Oren Perez ‘rethinks’ the nature of the trade and environment ‘conflict’ that has been with us since 1990s. He attributes this conflict to two glaring blind spots: the failure to consider that the issue pervades the international system, occurring in a variety of institutional settings outside of the World Trade Organization (WTO) (blind spot 1); and the binary characterisations of liberalised trade as good (‘free traders’) or bad (‘greens’) based on narrow perspectives on the matter (blind spot 2). Of the first blind spot, Perez rightly suggests that the trade and environment conflict is not just about the WTO, despite its power and prestige. Instead, the debate occurs in a variety of autonomous institutions that adhere to different agendas, and there exists no hierarchy of norms or institutions among these diffuse arenas. The failure to recognise this, according to Perez, has resulted...

The Role of Law in Counter-hegemonic Globalization and Global Legal Pluralism: Lessons from the Narmada Valley Struggle in India

The multiplication of legal orders is characteristic of what one could call an age of globalization and counter-hegemonic globalization. In this age, the relationship between international law and other normative orders is increasingly important. The dominant disciplinary frameworks that provide explanations of such a relationship are focused on compliance with and/or the effectiveness of international norms in domestic legal orders and are derived from international relations. In this article, I examine the limits and possibilities of such approaches through a case study of the use of law (at multiple levels) by one of India's most prominent social movements, the Narmada Bachao Andolan (Save the Narmada). The article argues that the use of law by a social movement is a concrete instance of counter-hegemonic globalization in which international law is one of many different legal orders, a situation of global legal pluralism, in which it is impossible to tell in advance which normative order will best advance cosmopolitan goals such as human rights.

Ecological Sensitivity and Global Legal Pluralism: Rethinking the Trade and Environment Conflict by Oren Perez Hart Publishing, Oxford, Portland Oregon, 2004, pp. xviii, 290

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Global Legal Pluralism and Electronic Democracy

Transnational regimes are becoming an important factor in the organization of life around the globe. International institutions such as the World Trade Organization, the International Criminal Court and the Internet Corporation for Assigned Names have taken a leading role in the governance of various fields such as global trade, humanitarian law, and the Internet. There is a wide gap however, between the increasing power of these transnational players and their democratic commitment. Indeed, this democratic deficit is putting at risk the legitimacy of these regimes. This democratic gap calls for the creation of institutional mechanisms that will allow the global public to participate in a meaningful way in the creation and implementation of global norms. Achieving this goal requires the development of inclusive and non-hierarchical decision-making structures, which could break the confines of the current nationalistic order, and offer the public direct access to processes of global norm-production. This paper focuses on the possible contribution that the Internet can make, and is making, to the development of such novel decision-making structures. In particular, it examines whether the Internet can offer ways to incorporate the public more meaningfully into the infrastructure of global legal regimes. The capacity of the Internet to short-cut barriers of space and time, makes it, at least prima facie, the ideal medium for transnational deliberation. Indeed, this has been shown, somewhat ironically, by the fact that the Internet has played a major role in facilitating the protests against various global regimes. Protestors have used the Internet extensively, both to publicize their critique and, more instrumentally, to coordinate their actions. Websites such as Protest.Net, www.indymedia.org, www.WebActive.com and www.corpwatch.org have turned into hubs of political communication. All of these websites include details of upcoming protests, action alerts, and links to other protest websites. The extensive political usage of the Net has even led some commentators to assert that the Internet could revolutionize the face of global politics. However, despite the impressive growth of civic protest over the Internet, the use of the Web to include the public in transnational governance processes appears to be very limited. The question remains, therefore, whether the Internet has indeed the capacity to foster more inclusive structures of global law-making. The paper addresses this question in three stages. First, the traditional conception of transnational governance is reviewed and its weaknesses for understanding and addressing the issues raised by the emerging system of global law are identified. A more contemporary interpretation of international regime formation is then presented that requires a democratic and truly global decision-making forum. Second, the role of the Internet as a means of realizing such ambitions is explored, using the idea of politics as a problem of collective action. The discussion presents a simple game-theoretic model to illustrate the capacity of the Internet to facilitate the emergence of viable transnational communities. In the third and final section, three case studies are presented showing how some international regimes are currently attempting to utilize the Internet to facilitate a more democratic mode of operation. The focus here is on the World Trade Organization, the International Organization for Standardization and the Internet Corporation for Assigned Names and Numbers.

Normative Creativity and Global Legal Pluralism: Reflections on the Democratic Critique of Transnational Law

One of the key achievements of anti-globalization movement was to trigger a wide-ranging debate about the legitimacy of the governance structures that control the international arena. The anti-globalizers accuse international organizations such as the WTO or the IMF as being undemocratic, and call for a radical reform of these organizations, with the goal of producing more democratic regimes. While it is hard to doubt the genuineness of the anti-globalization critique, and the deep aspiration for a voice that underlies it, its theoretical and pragmatic implications remain unclear. Two questions seem to lie at the heart of this difficulty. First, what does the notion of legitimacy mean in the transnational context? Second, in what sense does the call for democratization solve the problem of legitimacy? These questions point out the deep problematic of the linkage between legitimacy and democracy at the transnational level. This article considers this problematic by taking a closer look into this coupling. In its first part (sections I to III) the article reviews some of the more prominent responses to the challenge of transnational legitimacy: from the Westphalian-inspired concept of indirect democratic supervision, to the more universalistic ideas of NGOs-led democratization and directly deliberative democracy. It is argued that none of these narratives provides a convincing response to the democracy/legitimacy puzzle. The fragility of the legitimacy/democracy connection points to the need for an alternative understanding of legitimacy, for another standpoint from which to observe the current calls for the democratization of transnational law. The article concludes (sections IV and V) by proposing an alternative interpretation to the concept of legitimacy (vis-a-vis democracy) drawing on the ideas of creative norm-making, creative institution and social pluralism.

Normative Creativity and Global Legal Pluralism: Reflections on the Democratic Critique of Transnational Law

The globalization process has changed the nature of the “social.” Social interactions have become much more varied and flexible—transgressing traditional political and cultural boundaries (and expectations). The emergence of new forms of global law, which evolve and operate across these traditional lines, is a major aspect of globalization. This expanding network of transnational “legalities” is not based on a coherent set of normative or institutional hierarchies. Rather, it represents a highly pluralistic mixture of legal regimes, with variable organizational and thematic structures: from state-oriented systems—such as the dispute settlement system of the WTO, or the adjudicative system of the Law of the Sea Convention—to hybrid or private regimes. The latter category includes, for example, the expanding field of technical standardization, the new governance structure of the Internet, and the field of transnational arbitration.

Comparative Law Beyond Post-Modernism

The legal version of post-modernism has not failed to challenge comparative law. It points out that, traditionally, comparatists have participated in a project of objectivity, universalism and neutrality of law, of which the “new” approach to comparative law is altogether sceptical.1In the era of globalisation, both the discipline and its critique have gained relevance. What the transition of post-socialist countries and the unification of Europe have effected regionally, globalisation now accomplishes on a global scale: it creates desires for harmonisation and, as a pre-requisite, legal comparison. However, not only the technical function of comparative law is needed, but also its critical potential. In the process of globalisation, different legal systems and different cultures are confronted with each other and must interact. This provokes new questions about the options and limits of comparative law and legal unification, regarding, for instance, the applicability of specific moral and legal standards to other cultures by comparatists and law-makers. These questions are all the more pressing as we begin to realise that governing globalisation, in particular economic globalisation, with the help of global law perhaps requires a concept of a global legal order which is based on a “global legal pluralism”.2

Governing Economic Globalisation: Global Legal Pluralism and European Law

How is globalisation governed? The following article tries to answer this question. Focusing on economic globalisation, it presents the case of the international commodity chain in toys, identifies its various segments or boxes, and then gives examples to illustrate how the chain is governed. The article argues that economic globalisation is governed by the totality of strategically determined, situationally specific, and often episodic conjunctions of a multiplicity of sites throughout the world. These sites include, for example, EU law, United States law, Chinese law, multinational corporation and trade association codes of conduct, international customs conventions, and WTO law. Each of these sites has institutional, normative, and processual characteristics. Though the sites are not isolated from each other, each has its own history, internal dynamics, and distinctive features. Taken together, they represent a new form of global legal pluralism.

Opting out of the Legal System: Extralegal Contractual Relations in the Diamond Industry

Opting out of the Legal System: Extralegal Contractual Relations in the Diamond Industry