No More Sovereignty?: On the Concepts of Legal Pluralism, Living Law and Societal Constitutionalism
Chapter 4 Recent theories of global political order, the constitutional democratic state and cosmopolitan human rights commonly emphasize the plain fact of legal, political and ethical plurality. A collective subject, the people, is characterized as intrinsically pluralistic and its members as enjoying multiple identities often neglected or even suppressed by the existing constitutional form. Society becomes another name for the sovereign people and criticisms of constitutionalism consequently are a lot more informed, if not guided by, the sociological methodology so heavily criticized by both Schmitt and Kelsen. In this legal pluralistic approach, the multitude of society replaces the unity of sovereignty. The concept of legal pluralism often signifies the absence of sovereignty. Theories of legal pluralism are commonly perceived as critical of the very concept of sovereignty because the plurality of legal orders and regimes indicates the absence of the ultimate rule of recognition, decision-making power or the basic norm. They are equally critical of state law as a supreme legal order backed by political deliberation and decision-making and emphasize the role of non-state legal orders, agents and organizations. The recent popularity, great variety and conceptual innovations of legal and constitutional pluralism theories often lead to the academic ritualization and banalization of the very concept of pluralism. Theories of legal pluralism are thus currently typical of the differentiation between the ‘weak’ juristic concept of legal pluralism drawing on the state legal systems and the ‘strong’ concept of legal pluralism drawing on sociological and anthropological perspectives of law.1 In this chapter, I, therefore, pursue the goal of analysing transformations of the concept of sovereignty by critically examining and reconceptualizing theories of global legal and constitutional pluralism. I argue that John Griffiths’s original dichotomy of ‘weak’ and ‘strong’ pluralism has to be reassessed because even ‘weak’ jurisprudential theories contain extremely useful sociological analyses of the internal differentiation and operations of specific legal orders, their overlapping, parallel validity, structural irritations and collisions at subnational, national, supranational and transnational levels. Despite many differences, some themes have been common to all theories of legal pluralism and the remark that ‘[L]egal pluralism concerns the idea that more than one legal system operate in a single political unit’2 can be taken as the minimum common understanding of legal pluralism. Theories of legal pluralism generally criticize the concept of law as a normative order sanctioned by the state’s monopoly on political violence. They are equally critical of a ‘creeping monism’3 in international law. While monistic views look for a clear specification of legal authority and rules of legal validity, pluralistic views claim that these specifications are impossible in the presence of more legal systems operating in the same social environment. Theories of legal pluralism are particularly critical of state legal centralism that considers the law of the state to be the only form of law generally applicable to all persons and administered by state institutions. They criticize methodological individualism, instrumentalism and the assumption of the state’s normative monopoly as typical failures of theories of state legal centralism.4 Globalisation’s gift to law, for the moment, is a high degree of juristic chaos and indeterminate foundations of regulatory authority in many transnational fields. Transnational law is a work in progress without a basic norm or rule of recognition, a Hartian system of rules or Kelsenian hierarchy of norms, or any other juristic model of unity and authority.5 Global society supports anything but Kelsen’s monistic belief in one ultimate basic norm overcoming the duality of national legal systems and international law. Current legal structures and networks are characterized by contestations, fragmentations and differences. In this society, different legal systems coexist and make independent claims of legal validity and authority.6 The ultimate validity of the basic norm is replaced by a multiplicity of simultaneously valid basic norms of different and mutually independent legal orders – something considered logically impossible by Kelsen.7 The constitutional state as a typically modern form of political and legal organization cannot withstand the social pressure of globalization, and modern structural co-evolution of the state and law is replaced by new forms of global social organization of ‘global law without a state’.8 The plurality of laws in global society, therefore, constitutes a highly contested legal reality, unlimited by the constitutional structures and symbolism typical of the modern nation state9 and often driven by the specific regulatory demands of non-state legal sectors.10 While supranational organizations, such as the EU, tend to establish their specific hierarchies as monistic claims of normative supremacy and a single rule of recognition determining their relationship to other (Member State) legal orders operating within the same field, transnational legal settings recognize different legal orders and their specific criteria of validity without seeking logical hierarchies and general authority.11 Unlike concepts of supranational law and politics, which still accommodate some hierarchies and asymmetrical relationships typical of national and international law, and stretch them further by limiting state sovereignty, transnational law conceptualizes the condition of legal pluralism in which nation states and their legal systems perform a specific rather than constitutive function.12 Theories of legal pluralism, therefore, challenge the law of the modern state as a dominant form of legal regulation13 and contrast it to allegedly more effective parallel non-state legal orders and systems.14 The evolution of European and global legal pluralism and constitutionalism without state sovereignty indicates the need to move beyond the images and symbolism of politically and culturally integrated national society using the semantics of constitutional and popular sovereignty as its self-description, and human rights as its moral foundations. The legal pluralism of European and global society thus coincides with unorthodox conceptualizations, such as ‘constitutionalisation without the state’,15 ‘post-constituent constitutionalism’,16 ‘a subaltern cosmopolitan legality’17 and so on. Pre-modern and early modern concepts of consociationalism and the multitude of jurisdictions have been redesigned to address the complexity of our globalized post-modern and post-national societies and their legal systems. Recent theories of legal and constitutional pluralism involve a great variety of conventional jurisprudential conceptualizations of the basic fact of the plurality of legal and political orders in the global condition.18 Jurisprudential theories of legal pluralism acknowledge the existence of different legal orders and ultimate rules of recognition that do not communicate with each other in terms of hierarchy and supremacy established by a superior rule-based process.19 Instead of the ideal rule of law limiting politics and containing power, the legal pluralist condition typifies the absence of juridical hierarchy and the presence of permanent contestations and confrontations between political forces promoting the currently most persuasive juridical arguments and interpretations.20 Jurisprudential conceptualizations of legal and/or constitutional pluralism build on the absence of ultimate legal authority and the impossibility of reconciling conflicting claims to it by different official legal orders operating within the same context.21 The operations of these official legal orders need to be coordinated without any subordination because each of them carefully preserves and keeps self-referring to its basic norm or the rule of recognition.22 For legal pluralists drawing on a much more radical concept of pluralism, this, however, is a ‘weak’ pluralism. It is considered theoretically unremarkable because of its reliance on the concept of official state law and conventional models of adjudicative cooperation.23 Confronting this alleged ‘weakness’, the ‘strong’ concept of legal pluralism is expected to draw on the sociological and anthropological methods and juxtapose the unity of socially limited (if not marginal) official laws with the plurality of actually recognized social normative orders. The difference between ‘weak’ and ‘strong’ or ‘radical’ pluralism established by John Griffiths and other sociologists and anthropologists of law certainly contributed to highlighting methodological differences between the sociology and jurisprudence of legal pluralism. It strictly separated legal pluralism studies from analytical jurisprudence and sociological positivism, exploring unofficial and/or living law from legal positivism and legalism of officially sanctioned rules.24 However, Griffiths’s initial combative tone and radical critique of juristic pluralism also obscured the sociological value and inspiration of the jurisprudence of legal pluralism, especially its analysis of parallel legal structures and jurisprudential conflicts within the context of either more general constitutionalism containing and neutralizing social conflicts and collisions,25 or social governance networks and structures.26 ‘Weak’ jurisprudential and ‘strong’ anthropological or sociological pluralistic views of law are in fact both informed by the methodology of social sciences.27 Jurisprudential encounters commonly include sociologically inspired insights into the internal operations of transnational and supranational pluralistic legal systems and different ways of preserving their semantic unity and institutional operability. They often represent fascinating reflections on recent transformations and, in particular, the functional differentiation of legal systems and their semantics from the structures and semantics of politics and political sovereignty. Instead of emphasizing the logic of legal normativity and its priority over political will and social facts, jurisprudential theories of legal pluralism highlight the contingency of the interaction between different legal normative systems and the collisions between them, requiring a more or less radical version of legal pluralism.28 In making these claims, contemporary jurisprudential views are often profoundly influenced by the ‘radical’ methodology of social sciences, such as MacCormick’s thesis of law ‘beyond the sovereign state’29 and its later critical modification ‘questioning post-sovereignty’.30 No wonder MacCormick described his jurisprudential methodology as ‘radical pluralism’, too, despite its fundamental difference from legal pluralists’ radical criticisms of the state and official law-oriented legal positivism.31 MacCormick and Weinberger’s institutional theory of law32 was profoundly influenced by a general sociological theory of institutions33 and legal realist ideas of law as a means of social integration and change and as a normative reflection and institutionalization of human political and social imagination. According to the institutional view, law is ‘institutional fact’34 which is not exclusively determined by the state and is actually generated by non-state institutions, such as churches and international organizations, as well. Abandoning the modernist notion of law as the command of a sovereign, which considers the question of sovereignty as primarily a political problem that subsequently acquires its specific legal and constitutional form, the institutional theory of law ceases to be theoretically limited by the modern state’s organization, its politically exclusive power and monistic legal system. It adopts legal pluralism as a response to the increasingly diverse conditions of legal validity and the complexity of globalized law and politics. Close to the sociological and legal realist view of ‘law as fact’,35 the association of law with social institutions rather than just the nation state opens up the possibility of analysing subnational, supranational and transnational legal systems beyond sovereignty and without recourse to their ultimate source of validity and hierarchical normative ordering. It can address the problem of multiple sources of validity in supranational and transnational legal systems and explain their operative efficiency and stability through the general operations of social institutions rather than the political exclusive architecture and symbolic legitimation of the nation state. Radical critics are correct when they say that jurisprudential theories of legal pluralism typically prioritize official legal norms over non-state social norms.36 For instance, MacCormick’s treatment of European constitutional pluralism was based on a critique of legal monism as a theory informed by a single sovereign source of validity. Nevertheless, it was later moderated by MacCormick’s strong argument in favour of law as an institutionalized alternative to spontaneous social orders and the regulative ideal ultimately synthesizing pluralistic legal viewpoints and sources of validity at the EU’s supranational level.37 A number of legal regulations may be independent of state authority and the state system of law is just one system that does not necessarily subordinate other non-state supranational and transnational legal systems. However, the rationality of constitutionalism establishes official limits and a framework of political deliberation and thus ultimately determines the extent and content of multilevel communication between different constitutional sites and polities.38 ‘Strong’ sociological theories of legal pluralism go far beyond this ‘weak’ critique of sovereignty and the notion of a plurality of official legal orders enforced by different social agencies and institutions. They favour a radical version of the pluralism of unofficial legal orders spontaneously recognized by communities and operating despite a state legal order rather than as its parallel supplement. These theories commonly emphasize the basic fact of the plurality of social reality and its relevance for the legal system, especially the limits of the system’s self-regulation and its external dependence on spontaneously recognized non-state and non-legal normative orders of society. According to these views, formal rules of official law and their sanctioning by the sovereign state are just one of many different normative structures and orders of society.39 These radical theories are often driven by a critique of official state law and present themselves as critical theories of state power and sovereign authority enforced on the state’s territory and its populations.40 They also commonly perceive the state and its law as a form of hegemony that needs to be challenged by alternative politics emerging at subnational, national and transnational levels of global society.41 Finally, and most importantly, radical theories of legal pluralism often contrast the concept of constitutional and political sovereignty to spontaneously evolving sectors of society which, instead of being constituted by political force, engage in the parallel processes of self-constitutionalization and constitutional fragmentation.42 Though Eugen Ehrlich never established a theory of legal pluralism and did not even use the concept at all,43 the sociological concept of legal pluralism continues to be closely associated with Ehrlich’s concept of living law because theories of legal pluralism, like the sociology of law, focus on the internal operations and different regulations of society as a whole.44 By extending the concept of law to the realm of social customs and reformulating it as a blurred domain of genuinely binding and socially heterogeneous rules, Ehrlich certainly overcame the modern identification of law and sovereign political power and the methodological limits of normativist legal logic. Following the then popular distinction between society and community and adopting it in the context of legal theory, Ehrlich actually redirected academic attention from the official rule of society by state law to the spontaneously enforced rules of communal life beyond statehood. His concept of living law was a non-state concept of law recognized by a particular community. The unity of society was to be secured by the variety of spontaneously ordered associations of which people are members mutually coordinating their actions and reactions.45 Against the mainstream legal theoretical canon of official law sanctioned by the state, Ehrlich argued that the effectiveness of legal norms depends on the inner order of associations and its internal forms of enforcement rather than the power and organization of the modern state. According to this view, threats of force and official sanctions have very little effect and may indeed be counterproductive,46 and the normative order of society evolves without the state’s sanctioning power. Ehrlich was criticized by sociologists as much as by legal theorists and political philosophers. For instance, Max Rheinstein criticized Ehrlich’s confusion of law with custom and his reduction of legal science to sociology, and prudence to popular sentiment.47 More significantly, Ehrlich’s sociological method as a basis of a general theory of law was ignored by Max Weber who established his sociology of law by using common jurisprudential concepts of law, legal norms and sanctions or the relationship of law, the modern state and legal legitimacy. Furthermore, Kelsen dismissed Ehrlich’s theoretical views giving precedence to society and its general rules of existence and evolution over the system of positive law as a methodologically regressive return to the concept of natural law. Kelsen severely criticized Ehrlich’s sociology of law for confusing facts and norms and turning autonomous legal normativity into a mere function of the forces and ultimate laws operating in society. The identification of law and society in Ehrlich’s concept of ‘living law’ allegedly leads to the loss of methodological clarity and the reintroduction of the old-style metaphysical difference between positive and supra-positive law. According to Kelsen, this kind of sociology of law treating social facts indiscriminately as ‘living law’ faces the impossible task of establishing itself as a separate discipline independent from both general sociology, which focuses on the social facts of human behaviour, and legal science, which studies the normative character of a legal order.48 Similarly, Ehrlich’s peculiar form of the philosophy of life, translating into the concept of living law as law prevailing in the social struggle for recognition, was completely foreign to Schmitt’s notion of political struggle and the enemy/friend distinction. Ehrlich’s concept of society drawing on general forces constantly recreating the unity of pluralistic social life and spontaneously recognized as law was the opposite of Schmitt’s world full of frictions, differences and conflicts. Indeed, Schmitt’s vigorous criticisms of theories of political and legal pluralism because of their identification of legal and political reality with social totality applied to Ehrlich’s sociological theory of law. Nevertheless, it almost looks as if Eugen Ehrlich, so severely criticized by Hans Kelsen, dismissed by Carl Schmitt and ignored by Max Weber and other scholars of his time, is having the last laugh in the current condition of global society. His sociological method and emphasis on law as an order of rules spontaneously recognized by social associations appears appropriate for understanding the complexities of globalized law. It even led Gunther Teubner, a leading sociologist of global law, to remark that Eugen Ehrlich’s sociology of law was perhaps wrong at the time of its writing at the beginning of the twentieth century, but turned out to be the most comprehensive and realistic response to our current globalized society, nicknamed ‘Global Bukowina’ by Teubner, and typical of ‘global legal pluralism’.49 In this global context, Ehrlich’s concept of living law is reformulated as signifying the process of spontaneous juridification and even the constitutionalization of different sectors of global society without polity, such as commerce, intellectual property, internet, sport, environment and so on. The well-established theoretical semantics differentiating between living and legislated law, respectively law in action and law in books, is supplemented by new distinctions, such as hard law/soft law, national government/transnational governance and state/civil global constitutionalism. Ziegert, for instance, reinterprets Ehrlich’s sociology of law and the concept of living law as the most persuasive critique of statist legal theory which corresponds to our current state of self-ordering and self-regulating global society and its legal system operating without the state.50 He even considers Ehrlich’s theory a general theory of society rather than just another theory of law. According to this reading of Ehrlich’s living law, social order: … emerges as a relational and structural result of generalized, practised observation of others, that is, having respect for the actions and reactions of the other members of the association. This order cannot be singularly ‘hijacked’ or commandeered by any one individual. It develops over time, and becomes entrenched so deeply that the original, practical reasons for those ‘actions and reactions’ get lost in the cultural, intergenerational transmission. What there is to be ‘vigorously’ kept and preserved by the associations are the forms of relational conduct, that is, social norms.51 The social norms stabilize the inner order of association through social evolution and communicative experience. Social stability is conditioned by this self-regulatory primary order whose functionality – rather than a special apparatus of political enforcement – guarantees the effectiveness of valid norms. It is the factuality of social life rather than the normativity and/or rationality of a political order that facilitates the legitimacy of law. The living law dominates social life, and legal propositions and documents need to be recognized by these dynamic inner orders of human associations. Ziegert reinterprets Ehrlich’s conceptual separation of living law and lawyers’ law as an example of the functional differentiation of society and a challenge for modern society that needs reflexively to reconstruct expert legal knowledge and legal propositions formulated by lawyers as part of living law.52 He even treats Ehrlich’s view of living law as: … a prophetic glimpse at the emerging world law of human rights … reminiscent of Kant’s design of a cosmopolitan civil society of non-governmental ‘associations’ supported by law (international legal decision-making), together with the power play of states held in check by treaties. This civil society does not have nor needs to have a corresponding ‘world government’, but is anchored in and promoted by non-aggressive and humanitarian states …53 This optimistic assessment and surprisingly prescriptive ‘civil’ interpretation of Ehrlich’s sociology of living law builds on the contrast between artificially integrated political order and spontaneously evolving global civil society.54 Ehrlich’s distinction between lawyers’ law and living law can scarcely be reinterpreted as an example of functional differentiation because the living law, according to Ehrlich, dominates life, including the life of legal propositions, decisions and expert knowledge. The theory falls short of the heterarchies of a functionally differentiated society and its self-regulatory legal system because Ehrlich expands the meaning of law by finding it everywhere in society and thus blurs its social boundaries and differentiation from other social normative orders.55 If living law depends on the life of associations and the recognition of their members, the meaning of law becomes semantically expanded beyond the point of obscurity. If every normative order is to be called law, what about the relationship between the legal order and other social normative orders? Is law really any order that people use and call ‘law’?56 And does not the whole distinction of lawyers’ law and living law, respectively state law and non-state law, rather confirm the importance of the state as a law-making institution?57
No More Sovereignty?: On the Concepts of Legal Pluralism, Living Law and Societal Constitutionalism
Globalization and Theories of Legal Pluralism
A Pluralist Critique of Sovereignty: ‘Weak’ and ‘Strong’ Theoretical Views
A Radical Critique of the Society of Official Law and the Sovereign State: is Ehrlich Having the Last Laugh?
Living Law of a Global Civil Society
From Global Living Law to Fragmented Societal Constitutionalism