Transnational Legal Pluralism

Abstract

This paper draws out the analogies and connections between long-standing legal sociological insights into pluralistic legal orders and present concerns regarding the fragmentation of law outside of the nation state. Within the nation state, the discovery of legal pluralism inspired a larger contestation of concepts of legal formalism, of the alleged unity of the legal order and of the hierarchy of norms against the background of a constantly advancing process of constitutionalisation. This research heightened regulators' sensitivity to blind spots and exclusionary dynamics in the design of rights, leading inter alia to wide-ranging efforts to render more effective access to justice, legal aid and legal representation. Another important consequence concerned an increased awareness of different levels and sites of norm creation in various societal areas. Much of this is mirrored by today's quest for a just, democratic and equitable global legal order, for example in debates about ‘fragmentation of international law’ or ‘global administrative law’. But, while the legal pluralism debate largely unfolded in the context (and contestation) of relatively mature legal orders and institutions, such institutional frameworks and safeguards are largely absent on the international plane. As a result, the emergence of numerous norm-setting agencies, specialised courts and tribunals and regulatory networks are perceived as obstacles or impediments to the creation of a sound legal order on a global scale, rather than as inherent traits of an evolving legal order.