This symposium has embodied everything I sought to promote in establishing this blog. First and foremost, it has housed frank but respectful criticism. In our piece The Ahistoricism of Legal Pluralism in International Criminal Law, we saw an implicit deference to extant law in prescriptive accounts of Global Legal Pluralism that we did not think could be justified normatively. In pointing this out, we spent much time discussing how to frame the argument so as to communicate respect for a set of excellent scholars who had done so much to inform our thinking about these problems, then sought out their criticism once our piece was finally complete as a mark of this respect. In turn, they have offered equally courteous and frank responses to our arguments. In all, I am so pleased that the exercise has conveyed a commitment to the primacy of ideas, a recognition of the great intellectual value of critique, and an inclination on all our parts to metabolize whatever impersonal emotions arise from scrutiny. I hope this reply registers in that spirit and promotes that scholarly culture.

I begin by offering a set of clarifications, which I suspect the piece itself should have made clearer. Ours was never a total assault on Legal Pluralism. I continue to believe that it plays a crucial role in a number of areas, in particular through its ability to undermine what James Sákéj Youngblood Henderson calls “the colonial contrived superiority of European law.”[1] Anyone with even the most rudimentary understanding of law’s role in colonialism will know that withholding recognition of other pre-existing normative systems was a key element in this contrived superiority. In this light, Legal Pluralism is particularly important because it reasserts the authority of jurisgenerative communities other than the colonizing state while undermining rigid, hegemonic conceptions of what it means to have law. In many respects, this point explains our focus on state-made criminal law, even though this is deliberately a caricature of Legal Pluralism, as Paul Berman correctly points out. Nonetheless, as I will explain, our caricature eschews even more difficult problems for Global Legal Pluralism in an attempt to focus on a core of state law that Global Legal Pluralism’s deference to the legal requires it to embrace.

Reduced to its essence, our article was largely an attack on law as a necessary repository of moral, political, epistemic or cultural variation a cosmopolitan vision of global justice might seek to promote. Thus, we argued that Legal Pluralism’s method did not count against universal norms in the ways it claimed, in large part because it overvalued law. This point warrants emphasis. We do not argue that universal norms always solve the problems we point to across the board, which would be patently absurd. Instead, we mean to reverse the argumentative onus and place the burden onto the prescriptive account of Global Legal Pluralism, insisting that just managing whatever we consider to be law globally seems overly deferential to law. Our brief histories were, in the grand scheme of things, relatively superficial attempts to “scratch the surface” to see what lies beneath law. Having peered below the surface very briefly, we sought to point out how Legal Pluralism was not necessarily counter-hegemonic, since for a large set of what would constitute law, the hegemon had beat Legal Pluralism to the punch by imposing the law in the first place. Consequently, our aim was to warn that in prescriptive guise, the concept risked entrenching unjust norms.

We were, of course, conscious that history would never be able to “distinguish this superficial transplantation of domestic criminal law into the international realm, from potentially legitimate and useful reliance on national doctrines,” as Neha Jain rightly points out. Instead, we argued that the history of much of the world’s criminal law doctrine, both national and international, should undermine confidence that Legal Pluralism was necessarily respectful of genuine cultural variation, such that it could ground some concept of justice. Our first example of Argentine criminal law procedure operated as a null hypothesis where, by “scratching the surface,” we quickly found evidence of autonomous domestic ownership of and influence over criminal law doctrine. But in all our other examples, we found nothing similar. Far from stating that there was no congruence between local values and criminal law doctrine in any of these states, our argument was merely that these histories suggest real reason for caution against an idea that Legal Pluralism is, without more, worthy of veneration. We also felt that generic attempts to circumscribe Legal Pluralism’s over-enthusiasm for law, perhaps by citing human rights as an exception, came too late in the day because too much was already smuggled in through the initial deference to whatever law might be at the descriptive stage.

To develop this point, let me begin by recounting the descriptive and prescriptive variants of Legal Pluralism, since Global Legal Pluralism depends on both. Initially, Legal Pluralism was purely descriptive, tracing its origins to anthropological inquiries into the interactions between displaced social orders and formal colonial law. To the extent that the field drew on normative ideas within this descriptive mode, the need for this engagement largely grew out of challenges to methodology; i.e. objections to what should figure as “law” within the wider sociological inquiry. I circle back to this difficulty with defining law momentarily, since I have come to believe that it must be most acute in international criminal justice. For now, I again point to a major prescriptive shift for Legal Pluralism, where many scholars have begun to argue that diversity of social phenomena we are prepared to call law is not only empirically observable, but that this state of affairs is normatively desirable for the world. Global Legal Pluralism necessarily adopts both elements, first accepting a wide array of norms as constituting law, then recommending various institutional and procedural mechanisms for managing their interface. The caricature of Legal Pluralism the article offers was an attempt to hive off some of the most difficult problems at the descriptive stage, to highlight conceptual concerns with the transition from a descriptive to a prescriptive mode.

To explain this, let me start by agreeing wholeheartedly with Mireille Delmas-Marty’s eloquent statement that “choosing an exclusively state-centric perspective while the world is moving, the authors risk confining themselves to a state-centric, modern representation of LP which identifies with the rights of the state and makes the concept necessarily oxymoronic.” A theory of Legal Pluralism focused on state law alone would be oxymoronic. As our essay highlighted, “an over-emphasis on domestic criminal doctrine is anathema to true pluralism, whose very program involves looking beyond positivistic state-centered law.” Nevertheless, focusing on a segment of a field to elucidate conceptual concerns strikes me as entirely defensible. In our piece, we focused our analysis on state-centered criminal law in an attempt to avoid the wider jurisprudential problem involved in deciding what constitutes law at all. As Brian Tamanaha and many others have pointed out, that problem is a perennial thorn in Legal Pluralism’s side,[2] so we sought to bypass the conceptual impasse by criticizing a segment of the legal we believed was unambiguously so. I have since come to think that the positivistic assumption that informed this method was unjustifiable on our part, but in ways that radically strengthen our argument not detract from it.

Understandably, the rules crafted to bring about the atrocities international criminal justice seeks to address are the very subject matter legal theorists use to debate the nature of law. Since completing the paper, it has dawned on me that whether Nazi law was law at all is the paradigmatic debate for a large segment of jurisprudence; indeed the question goes to the heart of the relationship between law and morality and therefore operates as something of an acid test for so many aspects of legal theory. To cite what is probably the most celebrated example (in the Anglophone tradition), the Hart/Fuller debate is a long and in places heated dispute between the positivist tradition that would see law as identified through social facts quite apart from its moral value, and a natural law tradition that was shocked by the positivists’ willingness to confer normativity on a set of legislative enactments in Nazi Germany that were clearly morally perverse.[3] In many respects, the histories we discuss in the paper replicate these dilemmas. It stands to reason, therefore, that much of what we treat as law in the article might not be at all. This thought strikes me as very significant: it suggests that international criminal justice is not just a pleasant illustration of the normative interactions Global Legal Pluralism seeks to understand and manage. The field is at the heart of what Global Legal Pluralism means.

So, let me circle back to our caricature, showing how the natural law critique of our positivistic assumption only magnifies the concerns we raise. In our example of the inchoate crime of association de malfaiteurs in the Democratic Republic of Congo (see here, pp 33-41), we sought out a modern illustration of abhorrent criminal law doctrine in national systems comparable to the law “that allowed Joseph Stalin to sign 3,167 judicially-imposed death sentences in a single day, and Adolf Hitler to make being Jewish a criminal offence.” Our assumption, which I now think is highly disputable, was that this forcibly imposed inchoate crime of French then Belgian origins was unequivocally law; it survived the sieving off of law from religious, moral and social norms on the one hand, while distinguishing itself from the full range of non-obligatory propositions on the other. Once parsed out in this way, association de malfaiteurs was a law that both descriptive and descriptive theories of Legal Pluralism had to take seriously. Our project was to question whether Legal Pluralism should take it seriously at all, based only on its ability to pass this formalistic test. We used the apparent misalignment between local values and legal doctrine as our foil.

But Fuller, I suspect, would have doubted that association de malfaiteurs was law at all, then rebuked our positivistic attempt to avoid thorny jurisprudential problems as failed. But if our caricature fails for these reasons, it does so in ways that only galvanize our deeper point, namely, that “doctrinal pluralism is unsafe as a measure of diverse values and interests in the international community”. Perhaps Legal Pluralism is only about managing just law, such that the concept is instantly insulated from our criticism, but I see no evidence of this position in the literature with which I am familiar, and it would mark a sea-change for thinking about these problems. Then, to follow this jurisprudential line one step further in abstraction, the question becomes what the relationship is between Legal Pluralism and Justice. And here too, I now see this theme as a central but tacit pre-occupation in our paper as well as the literature more broadly. It is this unstated concern for justice, for instance, that leads scholars like Martti Koskenniemi to warn that Legal Pluralism “ceases to pose demands on the world;”[4] and Boaventura de Sousa Santos to assert that “there is nothing inherently good, progressive, or emancipatory about Legal Pluralism.”[5]

Justice is also useful in responding to criticisms based on the Rule of Law. In employing a Rule of Law frame, Kevin Davis’ excellent and thought-provoking critique of our article argues that “[d]octrines that confirm to people’s expectations are desirable, all else being equal, because they contribute to legal certainty and avoid situations that are tantamount to ex post facto lawmaking.” While there is certainly weight to this criticism, I am not sure how it squares with other principles espoused in the Rule of Law. As Waldron points out, avoiding contradictions in the law is also one of Fuller’s eight elements in the internal morality of law, and others like Dicey viewed legal equality as indispensable too.[6] Universality appears better able to achieve these competing values. But more fundamentally, as critical traditions from Feminisim to Marxism teach us, Rule of Law arguments are all vulnerable to deeper normative commitments that take some notion(s) of justice as the paramount goal. To offer an illustration from our paper, even if we do assign legal certainty primacy as an Rule of Law value, I am doubtful that it could ever ground a norm like association de malfaiteurs in the Congo. I hold this view since a norm imposed by force as part of a brutal campaign of subjugation and plunder, which operates to inhibit political participation and freedom of expression now, seems plainly unjust.

Markus Dubber’s response takes us down a slightly different track on this justice path, where he argues that “[p]luralistic international criminal law thus becomes international criminal law kind and gentle enough to mollify its protagonists’ latent concerns about its apparent lack of legitimacy”, and then later that, “[i]ncapable of facing its legitimacy challenge head-on, international criminal law instead makes do with professions of concern about ‘pluralism’.” These types of normative concerns are slightly different to those that animated our paper, but they also play off the relationship between law and a conception of justice. So, while I view Legal Pluralism as a helpful concept to ward off “the colonial contrived superiority of European law” and agree with Sasha Greenawalt that, descriptively speaking, Legal Pluralism is inherent, I remain convinced that history is a useful mechanism to illustrate the concept’s shortcomings as a guarantor of justice. I have also become convinced that, far from raising questions that are peripheral to Global Legal Pluralism, international criminal justice poses problems at the concept’s very heart.

I am so thankful for all of the excellent criticism we have received, which has enriched my thinking considerably. I hope that some of the foregoing is useful to others as they grapple with problems of law in the global order.

 

[1] James (Sákéj) Youngblood Henderson, Postcolonial Indigenous Legal Consciousness, 1 Indig. Law J., 2 (2002), http://jps.library.utoronto.ca/index.php/ilj/article/download/27710 (last visited Apr 19, 2018).

[2] Brian Z. Tamanaha, Understanding Legal Pluralism: Past to Present, Local to Global, 30 Sydney L. Rev. 375, 375 (2008).

[3] H. L. A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. Law Rev. 593–629 (1958); Lon L. Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, 71 Harv. Law Rev. 630–672 (1958).

[4] Martti Koskenniemi, The Fate of Public International Law: Between Technique and Politics, 70 Mod. L. Rev. 1, 23 (2007).

[5] Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and Emancipation 89 (2002).

[6] Jeremy Waldron, Legal Pluralism and the Contrast Between Hart’s Jurisprudence and Fuller’s, in The Hart-Fuller Debate in the Twenty-First Century (Peter Cane ed., 2010).