Paul Schiff Berman, University of Connecticut School of Law & LAPA Fellow

Global Legal Pluralism

Mon, 04/09/2007
4:30 - 6:00 PM, Kerstetter Room, Marx Hall
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Paul Schiff Berman earned his A.B., summa cum laude, from Princeton University in 1988 and his J.D. in 1995 from New York University School of Law, where he served as Managing Editor of the NYU Law Review and received the University Graduation Prize for the graduating law student with the highest cumulative grade point average. He has served as law clerk to then Chief Judge Harry T. Edwards, of the United States Court of Appeals for the District of Columbia Circuit, and for Associate Justice Ruth Bader Ginsburg, of the United States Supreme Court. He has taught at the University of Connecticut School of Law since 1997. His current scholarship focuses on the intersection of international law, conflict of laws, cyberspace law, and the cultural analysis of law. While at LAPA, he has been working on a book called Law Beyond Borders and his LAPA seminar paper is part of this larger work. He has published pieces of the project in the Yale Journal of International Law, the University of Pennsylvania Law Review and the Texas Law Review . He is the author (with Patricia L. Bellia and David G. Post) of Cyberlaw: Problems of Policy and Jurisprudence in the Information Age (West Pub.) and the editor of two volumes of essays, The Globalization of International Law and Law and Society Approaches to Cyberspace (Ashgate Pub.). He is currently on the Organizing Committee of the Association for the Study of Law, Culture, and the Humanities. Prior to entering law school, Berman was a professional theater director in New York City and Artistic Director of Spin Theater. He was also Administrative Director of The Wooster Group and of Richard Foreman's Ontological-Hysteric Theatre at St. Mark's Church.

Sally Engle Merry recently moved to New York University from a position at Wellesley College, where she had taught for many years. She now holds a joint appointment in the department of anthropology in the College of Arts and Sciences at NYU and in the Law and Society program in the NYU Law School. The author of more than 100 articles in anthropology and legal studies journals, Merry is perhaps best known for her classic book Getting Justice and Getting Even (Chicago, 1991). Her book, Colonizing Hawai’i: The Cultural Power of Law (Princeton Univ. Press, 2000), received the 2001 J. Willard Hurst Prize from the Law and Society Association and is also on the way toward becoming one of the must-read books in the field as well. In 2006, she published Human Rights and Gender Violence: Translating International Law into Local Justice with the University of Chicago Press. She is past-president of both the Law and Society Association and the Association for Political and Legal Anthropology.

Article Abstract

This Article grapples with the complexities of law in a world of hybrid legal spaces, where a single act or actor is potentially regulated by multiple legal or quasi-legal regimes. Law often operates based on a convenient fiction that nation-states exist in autonomous, territorially distinct spheres and that activities therefore fall under the legal jurisdiction of only one regime at a time. Such a territorialist system is now simply untenable (if it was ever useful to begin with). Thankfully, debates about globalization have moved beyond the polarizing question of whether the nation-state is dying or not. But one does not need to believe in the death of the nation-state to acknowledge both that physical location can no longer be the sole touchstone for understanding legal authority and that nation-states must work within a framework of multiple overlapping jurisdictional assertions by state, international, and even non-state communities.

In order to conceptualize this world of hybrid legal spaces, I introduce literature on legal pluralism, and I suggest that, following its insights, we need to realize that normative conflict among multiple, overlapping legal systems is unavoidable and might even be desirable, both as a source of alternative ideas and as a site for discourse among multiple community affiliations. Thus, instead of trying to stifle legal conflict either through a reimposition of territorialist prerogative or through universalist harmonization schemes, communities must seek (and increasingly are creating) a wide variety of procedural mechanisms and institutions for managing, without eliminating, hybridity. Such mechanisms and institutions may help mediate conflicts by recognizing that multiple communities may legitimately wish to assert their norms over a given act or actor, by seeking ways of reconciling competing norms, and by deferring to other approaches if possible. Moreover, when deference is impossible (because some instances of legal pluralism are repressive, violent, and/or profoundly illiberal), procedures for managing hybridity can at least require an explanation of why.

For more on Paul Schiff Berman, see his LAPA page.