---
title: Legal Pluralism and Global Law
author: Benoit Frydman et William Twining
language: en
date: 2015
canonical_url: https://benoitfrydman.com/en/journal-article/2015-legal-pluralism-and-global-law/
doi: 10.1080/07329113.2015.1030210
pdf_url: https://benoitfrydman.com/assets/pdf/frydman-b-2014-legal-pluralism-global-law-edition.pdf
note: The published version is authoritative (la version publiée fait foi). This Markdown
  edition is provided for machine reading and citation; it is not itself the version
  of record.
---

In recent years, the idea of 'global law' has gained extraordinary
relevance in legal theory as a means of casting off the political
boundaries and formal constraints of state law in theorizing the
transformations of contemporary law. Global law has also gained
followers among legal professionals, especially among those who wish to
provide an expertise with the law of multiple jurisdictions. Their
enthusiasm has led to the development of worldwide networks of law firms
and the creation of self-proclaimed global law firms. A similar pattern
is developing in legal education. A growing number of law schools,
research centers and networks now offer and conduct global law training
and research. However, next to these initiatives, seems to exist a
misunderstanding about the idea of global law. It is sometimes described
as an aspirational project seeking to develop a universal legal system
and common rules across the globe, which would then presuppose the
existence of a global state, or at least, a global constitution. This
conception of global law is fairly unrealistic. Most legal scholars are
well aware that we live in a multipolar world, and that reaching
consensus on key social, economic and political issues, as well on their
driving values, is unlikely to happen.

However, there is no reason why legal scholars should limit themselves
to a monist conception of global law in which rules must belong to a
unique legal order or legal system under the authority of a global
political institution. Would it not be more promising, and perhaps more
relevant, to develop a working conception of global law from current
practices, focusing on the questions they raise and initiatives they set
off? In my view, global law is more likely to grow out of the new
realities created by globalization, which are often, but rightly,
characterized by the proliferation, intensification and generalization
of interactions, relations and exchanges extending beyond the
jurisdiction of states, and interstate, legal orders or happening to
fully take place outside of them. Hence, the central question global law
is called to address is how to regulate issues arising from the emerging
global society in the midst of a multiplicity of legal systems and
fragmented legal regimes. Attempting to answer this question without
suggesting the need for unification or convergence constitutes in my
view the baseline of a pluralistic conception of global law.

Subsequently, one should distinguish among multiple pluralistic
conceptions of global law; it seems that legal pluralism is itself
pluralistic. In the following pages, I will put down three questions in
the form of binary distinctions as an attempt to sketch a basic and
non-exhaustive categorization of legal pluralism in the field of global
law. I hope they will be useful to read across the illuminating
contributions of this special issue of the **Journal of Legal
Pluralism.** The reason why I focus on these questions only, which are of
course not the only ones worth discussing, is because they shaped to a
great extent the research carried out at the Perelman Centre for Legal
Philosophy in Brussels. Our choices in each of these issues, shaped the
pragmatic and radical-pluralist conception of global law characterizing
most of our present works.

**\1. Ordered v. Radical Pluralism?**

A legal scholar may want first to define his standpoint. Scholars like
Paul Schiff Berman[^1] 286-287 (Cambridge U.
Press 2014).] in the United States and Mireille
Delmas-Marty[^2] 7-33 (Seuil 2006).] in France
have leaned towards the perspective of ordered pluralism; they enquire
global law by looking at the relationships between different legal
systems and their multilevel rules. Their works both identify and
discuss the means and procedures through which it is possible to
harmonize the relationships between several legal systems and to solve
conflicts arising from their interaction. Ordered-pluralist scholars
have also looked beyond national legal systems to include local and
regional legal orders, sectoral regimes and even religious orders. For
instance, in the systems theory tradition of Niklas Luhmann, the works
of Gunther Teubner and Andreas Fischer-Lescano make the point that, at a
global scale, law is called to regulate and arbitrate the relationships
and conflicts between rules and sectoral regimes of activities such as
finance, health, trade and the Internet[^3], 25 Mich. J.
Int\'l L. 999 (2004).]. Although there are significant nuances and
disagreements between these approaches, they all consider the
globalization of law in the light of the relationships between legal
orders. From a legal theory perspective, they relied on a normative
conception of law according to which rules do not exist by their own,
but only as part of a system which endows them with meaning, legitimacy
and efficacy.

In opposition to the ordered pluralism approach stands Jacques
Vanderlinden's idea of radical pluralism. Rather than looking at rules
that can be applied to a concrete situation from the macro-perspective
of the legal order, radical pluralism adopts the micro-perspective of
the actors effectively involved. From this standpoint, legal pluralism
defines the situation of an actor engaged in a legal relationship in
which he may either resort to rules belonging to different legal or
normative orders in pleading his case or, on to contrary, be asked to
conform to these diverse rules. If these developments are not new or
specific to the globalization of law, they intensify considerably
because of the strategic behavior of actors in a global context which
tends to result, increasingly, in the generalization of *law and*
*forum shopping* practices.

It is self-evident that each perspective leads to a whole set of
different questions. For the perspective of ordered pluralism, global
law and legal pluralism reflect the viewpoint of a global observer.
Hence, the key question an ordered-pluralist scholar will address is how
to organize the relationships and conflicts between multiple legal
orders at a global scale. In contrast, from the perspective of radical
pluralism, the observer adopts the point of view of an engaged actor.
Hence, a radical-pluralist scholar will rather enquire the possible
effects of using, in a strategic and opportunistic way, the variety of
existing legal systems, regimes and rules. As a result, ordered
pluralists tend to emphasize the importance of harmonizing legal regimes
or developing rules for the conflict of laws. Instead, radical
pluralists focus primarily on understanding and explaining the
'normative competition' set off by globalization and its possible
effects on law, including the so called "race to the bottom" of both,
issuers and users of rules.

Both perspectives are in a certain way legitimate and necessary for
understanding the dynamics of law in the context of globalization. Since
Chaïm Perelman, the Brussels School of Jurisprudence has embraced the
radical pluralistic perspective. The leading works of Jacques
Vanderlinden and current research conducted at the Perelman Centre for
Legal Philosophy follow this tradition[^4], in _Private International Law and Global
Governance_ 181- 200 (Horatia Muir Watt ed Oxford University Press,
2014) and *Prendre les standards et les indicateurs au* sérieux, in
_Gouverner par les standards et les indicateurs: De Hume aux
Rankings_ 1, 1-65 (Benoit Frydman et Arnaud Van Waeyenberge eds.
Bruylant 2014); Thomas Berns, Pierre-François Docquir, Benoît Frydman,
Ludovic Hennebel & Gregory Lewkowicz (eds.), _Responsabilités des
entreprises et corégulation_ (Bruylant 2007).]. Radical pluralism relies
on a pragmatic approach to the study of law which sets aside the concept
of legal order. In the field of global law, radical pluralism
facilitates studying the destructive effects of globalization on state
law and identifying, in the field, the emergence of new regulatory
devices created by the interaction and hybridization of norms and rules
of different nature. In brief, for a radical pluralist, the study of
rules and norms in a global setting does not end with the study of the
relationships and interactions between the normative or legal orders.

For instance, Internet regulation has developed regulatory devices that
combine rules of legal liability with technical protocols and
techniques, while negotiable pollution rights has similarly attempted to
bring together (though without much success so far) legal rules on the
reduction of CO2 emissions with financial market products and
instruments. Similarly, corporate social responsibility blends moral and
technical norms (*standards*), such as ISO 26000, with compliance
mechanisms based on *benchmarking* and *labeling* practices.
All these regulatory devices refer to and embrace rules from a variety
of legal and normative orders without however intending to redefine
their relationships at a general level.

**\2. Legal Pluralism v. Normative Pluralism?**

A legal scholar in a global law setting may also want to discuss the
nature of the orders and norms he is taking into consideration in his
work. A first option is to focus exclusively on the interactions between
orders and rules which are defined to be legal in nature from the
perspective of a normative or positive law theory of
sources[^5]. A
second possibility is to conduct research beyond positive law to
outline, from a global perspective, the interactions and relationships
between, on the one hand legal rules, and on the other hand, other types
of norms, whether they belong to religious orders (P.S. Berman),
technical protocols (G. Teubner), or managerial processes (Benedict
Kingsbury and the GAL group[^6], in Kevin E. Davis, Benedict Kingsbury, and Sally Engle
Merry, _Governance by Indicators: Global Power through
Quantification and Rankings_ 3-28 (Oxford U. Press 2012).]). In these
cases, it seems more appropriate to replace the term legal pluralism
with what William Twining has called "normative
pluralism"[^7] 224-233 (Cambridge U. Press 2000).].

Once again, this issue is not new or specific to global law.
Globalization reinforces however the need to consider the relevance of
normative pluralism if one is to take seriously observations accounting
for the decreasing efficacy of state rules in framing transnational
relations and transactions in highly globalized domains of our
societies. The reason is that, in many cases, these observations also
account, in my view rightly, for the greater use and efficacy of
technical norms implementing technological and statistical solutions. If
these norms are not fully replacing state law, they are at least, in
certain domains, complementing and competing with rules of positive law.

Legal scholars and practitioners seem hesitant to take a step forward
and include these norms in their research and everyday practice
respectively. Perhaps, they feel it will play against the specificity of
their profession or lead to wrong or non-rigorous legal reasoning.
Behind this denial lie ideas according to which these regulatory devices
are not law formally speaking, reflect and respond to a different set of
values, and fulfill different societal functions. Legal professionals
particularly may also consider these devices belong to different
sub-sets of disciplines including management, economics, informatics and
statistics.

All these concerns are legitimate. From a pragmatic perspective, they
show there is a concrete professional and practical concern behind the
theoretical question of "what is law?", which is to know what legal
professionals should take care of in the spectrum of normativity. The
Brussels School of Jurisprudence has always been resolute to implement
an interdisciplinary and non-formalist approach, pleading for the
inclusion, within the scope of jurisprudence, of normative devices other
than "rules in uniform" (to use Perelman expression)[^8], or those with a "legal
pedigree" (if one follows Ronald Dworkin's test)[^9]. A first reason is that the notion or core meaning of what
is law evolves over time, as does the boundaries between law and
non-law. A telling example is human rights. Though they were earlier
dismissed by scholars and lawyers, they are today at the heart of any
field of law, and arguably stand, as a branch of law, at the top of the
positive law pyramid. A second reason is that legal professionals are
already dealing in their daily occupations with these new regulatory
devices --*standards*, benchmarks, protocols, indicators, codes of
conduct. Hence, it seems reasonable to include them within the field of
legal research and teaching, and to prepare future legal professional
for their encounter, preventing them from abandoning this now central
normative domain to other professions.

**\3. Legal v. Axiological Pluralism?**

A third issue worth discussing at this stage relates to the relationship
between a pluralistic conception of global law and the fact of
axiological pluralism as existing in the world society. Legal pluralist
scholars of global law may want to think about how to deal with, and if
appropriate accommodate, two or more conceptions of the good. The
practical link between legal and axiological pluralism is, as the issues
discussed earlier, neither new nor specific to global law. Globalization
allows however putting them into a new perspective. The classic debate
between John Rawls and Jürgen Habermas is a good starting point.

The issue at stake was to know how peoples and nations with different
values and conceptions of justice could agree on the moral principles
underpinning a world law. Rawls put forward his idea of an "overlapping
consensus", which sought to identify the points of agreement without
giving consideration to the system of values as such. Instead, Habermas
argued that it was necessary to have an actual discussion about the
principles of justice under the rules of discourse ethics. This
reasoning also underlies his more recent works on global
constitutionalism. In my view, both ways of dealing with axiological
pluralism are not only hardly realizable but also unsuitable for a
pragmatic and radically pluralistic conception of global law. It seems
vain to search for moral unification or ordering in a world highly
divided by the conflicts of interests and values.

From the perspective of the Brussels School of Jurisprudence, law does
not presuppose shared values or an agreement on the conception of the
good. It is rather a battlefield where the confrontation between
different values takes place. According to Perelman, law is created and
applied not in spite of moral disagreements, which are often
irremediable, but rather because they exist[^10]. From his pragmatic standpoint, law is an instrument through
which actors in morally pluralistic societies attempt to make their view
of the good and right prevail, which also explains why law is
essentially dynamic. In a global law setting, the lack of effective
global political institutions suggests that the 'struggle for law' takes
place well beyond positive international law. A radical pluralist
perspective, which studies norms and regulatory devices as deployed by
actors, may thus be far more fruitful and revealing about the dynamics
of values in the global society, than one focusing exclusively on
interstate law. Perelman may have taught us a valuable lesson: global
law may be thought better as a confrontation of values than as an
arbitrage.

---

[^1]: Paul Schiff Berman, _Global Legal
Pluralism: A Jurisprudence of Law Beyond Borders
[^2]: Mireille Delmas-Marty, _Les force imaginantes
du droit (II) -- Le pluralisme ordonné
[^3]: Gunther Teubner,
*Constitutional* Fragments (Oxford U. Press 2012); Andreas
Fischer-Lescano & Gunther Teubner, _Regime-Collisions: The Vain
Search for Legal Unity in the Fragmentation of Global Law
[^4]: Jacques Vanderlinden,
*Return to Legal Pluralism: Twenty Years Later*, 28 J. Legal
Pluralism and Unofficial Law 149 (1989) and .*Les pluralismes*
juridiques (Bruylant 2013). Benoît Frydman, _A Pragmatic Approach
to Global Law
[^5]: Neil MacCormick & Ota Weinberger, *Introduction*,
in *An Institutional Theory of Law*: New Approaches to Legal
Positivism 1, 1-6 (Kluwer 1992). See also Benoît Frydman & Gregory
Lewkowicz, *Le droit global est-il soluble dans ses* sources?
Working paper du Centre Perelman de Philosophie du droit, 2013/01.
[^6]: See Kevin E. Davis, Benedict
Kingsbury, and Sally Engle Merry, _Introduction: Global Governance
by Indicators
[^7]: William Twining, _Globalization and Legal
Theory
[^8]: Ch.
Perelman, *A propos de la règle de droit* *--*
*Réflexions* *de méthode* 316 in *La règle de droit*
(Perelman et Foriers eds Bruylant 1971).
[^9]: Ronald
Dworkin, *The Model of Rules*, 35 U. Chi. L. Rev. 14, 17
(1967-1968).
[______