Concluding Remarks

Chapter 9 presents the main conclusions from this inquiry and also offers a few wider concluding observations on justification, private law essentialism, normative pluralism, democratic compromise, and the limits of legal theory.

Normative and Legal Pluralism: A Global Perspective

This chapter sets out to demystify the topic of legal pluralism by examining the relationship between legal pluralism, normative pluralism, and general normative theory from a global perspective. The central theme is that treating legal pluralism as a species of normative pluralism decenters the state, links legal pluralism to a rich body of literature, and helps to show that some of the central puzzlements surrounding the topic can usefully be viewed as much broader issues in the general theory of norms and legal theory. A second theme is that so-called “global legal pluralism” is in several respects qualitatively different from the older anthropological and sociolegal accounts of legal pluralism and is largely based on a different set of concerns. Following the introduction in section I, section II considers normative pluralism. It explores the ambiguity of “pluralism” and some themes in general normative theory. Section III introduces the heritage of literature on legal pluralism. It presents an ideal type of social fact legal pluralism to which much, but by no means all, of the mainstream literature approximates. Some brief case studies illustrate some distinctions that are increasingly under attack. Section III suggests that social fact pluralism has achieved much in raising awareness of nonstate normative orders, but provides little guidance on issues of state policy and institutional design. Section IV considers the implications of adopting a global perspective in this context. It questions how far social fact legal pluralism is helpful in addressing a wide range of concerns raised by “globalization” and argues that the radically ambiguous idea of “global legal pluralism” is being applied to such a variety of phenomena and concerns as to be virtually meaningless.

Normative Pluralism and Multinormativity

The paper deals with the phenomenon of normative pluralism - that of several normative orders coexisting in various spheres of our life - law, morality, politics, etc. It shows the root causes of normative pluralism and the causes of its development and proliferation - both internal (overcoming legal and moral syncretism) and external (globalization and the related growth in the number of regulatory subjects). The authors offer a way of understanding and reconciling norms by building out of potentially conflicting norms a non-contradictory system without any normative collisions.

Homeownership, Legal Administration, And The Uncertainties Of Inheritance In South Africa’s Townships: Apartheid’s Legal Shadows

Expanded homeownership in Johannesburg’s townships offered the prospect of post-apartheid formal inclusion. Yet allocation of title to former rental homes has been characterized by a profound lack of normative consensus regarding ownership or inheritance. In bitter disputes over houses, appeals to law jostle and interweave with claims in a customary register. In much regional scholarship, normative pluralism provides a point of departure for understanding disagreement of this kind. This article proposes an alternative perspective by examining how dissensus is mediated and given shape by a legal–administrative process. Law becomes inchoate in layers of bureaucratic encounter, while contested claims to custom are sharpened at the interface with bureaucracy. In South Africa, taking administration as a starting point reveals the long shadows of apartheid in concrete experiences of the law, in extra-legal understandings, and in the very terms of contestation among kin. Illuminating the little-explored topic of urban property inheritance, the perspective has broader implications for understanding inequality. Inclusion through homeownership is a form of ‘adverse incorporation’ marked by official opacity, diffidence regarding the law, stratifying administrative dualism, and uncertainty about the parameters of ownership and inheritance.

Fiduciary Law

This chapter assesses fiduciary law within the framework of private law theory. Fiduciary law and private law theory seem made for one another. Fiduciary law is centrally focused on the morally attractive end of maintaining relationships of trust and confidence among individuals. But it does so by bracketing highly abstract normative theory in favor of well-developed legal constructs such as duties of loyalty and care. It is comfortable with pluralism, complexity, and context-specificity. Moreover, it represents a rational structure that is not wholly dependent on external criteria yet does not aspire to strict independence from empirical considerations and normative values. Fiduciary law nevertheless poses some challenges for private law theory. As an evolving field, it may grow in unanticipated directions and risk the loss of its former coherence. The possibility of this loss of a coherent organizing structure has motivated considerable recent work in the theory of fiduciary law, and also in legal theory more generally, as scholars seek to understand how normative pluralism can coexist with stable, rational legal doctrine.

Conclusions

The chapter explains that political power is fundamental to politics and thus of foremost interest to those interested in political science and political theory. Power is implicated in causation but is more problematic as it concerns the capacities of agents and how they choose to wield them. The chapter discusses the contestability of concepts and dismisses those who think that power cannot be analysed since it is essentially contested concept. It utilizes what has become known as the subscript gambit to overcome the contestability of concepts. It argues we need not think concepts are contested even though we acknowledge that there is social normative pluralism. It concludes by arguing that the lens of rational choice is the most useful tool for understanding the concept of power and providing tools for analysing it in concrete political situations

Regulating the Baltic Sea – A Showcase of Normative Pluralism

The Baltic Sea Region (BSR) faces several challenges, not the least in respect of the poor state of the sea itself. The regulatory framework governing the BSR is complex, displaying a multi-layered structure with up to five regulatory levels. The regulatory scene is also characterised by many features that could be assumed under the umbrella of post-national rulemaking. This article discusses features of the pluralisation of BSR regulation. The BSR regulatory framework is on the one hand rich with regulatory initiatives at the fringes of both ‘actorness’ and ‘ruleness’. On the other hand, the framework is characterised by cross-fertilisation between regulatory layers. Such interaction can add to the regulatory impact of normatively soft acts, but can also come with drawbacks. In any case, the article claims, a complete picture of BSR regulation can only be attained through an appreciation of normative pluralism. Keywords: Baltic Sea, Post-National Rulemaking, European Union, Soft-Law, Framework Instruments, Pluralism, Helcom

The Limits of Promise

This chapter critically assesses three ways in which promise might plausibly claim to play a ‘foundational’ or special justificatory role in contract. According to ‘justificatory necessity’, promise plays an essential or necessary role in the justification of each and every contract doctrine. According to ‘justificatory primacy’, promise defeats all conflicting principles in contract. And, finally, according to ‘justificatory presumptiveness’, the divergence of contract from promissory morality justifies an epistemic presumption that contract law is prima facie unjustified. This chapter shows how these interpretations are insufficiently sensitive to the fact of ‘normative pluralism’ in contract, and how this leads them to seriously mishandle contract doctrine. They end up either repudiating perfectly justified contract law doctrines, upholding problematic doctrines, or, finally, offering the wrong explanation of contract law rules. This chapter argues that the truth about contract law depends on reaching beyond the promise theory and its foundationalist assumptions.