Cosmopolitan Pluralist Hybrid Tribunals

This chapter assesses hybrid tribunals as an example of cosmopolitan pluralist engagement. Hybrid tribunals, also known as internationalized criminal tribunals or hybrid courts, are ad hoc courts that incorporate a blend of international and national components and have jurisdiction over atrocity crimes such as genocide, war crimes, and crimes against humanity. These tribunals are expected to achieve their transitional justice and rule of law goals in no small part through the mechanism of pluralist engagement among multiple international and national legal communities. This chapter reviews the evolution of hybrid courts’ original core features of mixed staffing, mixed law, domestic location, and close relationship to the national legal system, including the emergence of new elements such as victim participation and domestic outreach. It evaluates their efforts to promote the goals of domestic perceived legitimacy, capacity building, and norm penetration, assesses the inclusivity of their design processes, and considers their influence on norm fragmentation in international criminal law. Overall, as institutions, some hybrid tribunals offer substantial opportunities for cosmopolitan pluralist engagement between international and local actors, while others are significantly constrained by institutional design or operational choices.

International Criminal Law and Legal Pluralism

International criminal law is not a single unified body of norms, and the pluralism paradigm is useful to describe its heterogeneity. This chapter aims to answer the question of how to do justice to the universalist claim of international criminal law as an inherently pluralist body of law. The chapter formulates principles to manage legal pluralism while doing justice, as much as possible, to the universalist and cosmopolitan ethos of international criminal law.

Law Unbounded? The Shifting Stakes in Global Normative Order

The gathering trend of the trans-systemic migration of legal ideas shifts the stakes in the debate over the relative rootedness or mobility of law. While legal rootedness within the state and other locally bounded jurisdictions still requires as much justification as ever, there is now more pressure on the other side of the debate, among those who would defend or advocate the increasingly mobile understanding and practice of law. The justification of this can be system-particular, universal, or modular in nature. Whereas the first two options court the opposite dangers of understating the prospects and overstating the robustness of trans-systemic normative solutions, the chapter argues that a modular approach focusing on the transferability and (re)combinability of certain standard part of legal doctrine holds out more scope for an accurate and defensible account of legal migration.

Global Legal Pluralism and the Rule of Law

A vibrant debate has recently emerged among legal theorists regarding the desirability of legal pluralism: the existence of distinct regulatory regimes that make overlapping claims to authority. While Monists maintain that we should strive to forge a unitary legal order, Normative Legal Pluralists favour an approach that seeks to manage legal plurality without eliminating it. This chapter critically evaluates a common argument Monists level against Normative Legal Pluralism, namely that it conflicts with fidelity to the ideal of the rule of law.Advocates of Normative Legal Pluralism employ three strategies to respond to their rule-of-law critics. First, they attempt to show that a plural legal order fares no worse than a unitary one when measured against the standard of providing legal subjects with certainty and predictability. Second, they argue that increases in tolerance, or respect for the exercise of communal and individual autonomy, warrant whatever diminution in the rule of law Normative Legal Pluralism produces. Finally, they invoke an account of law’s distinctive normativity informed by sociolegal jurisprudence and constructivist political theory to disarm rule of law objections to normative legal pluralism, either by contesting the premises on which they rest or by providing reasons to conclude that the critics’ worries are seriously overdrawn. While the first two strategies fail, the critics underestimate or simply fail to notice Normative Legal Pluralists’ ability to leverage their conception of law’s legitimacy to address rule of law concerns.

Pluralist Authority and the Relation between Plurality and Pluralism

This chapter argues that the key to understanding both plurality and pluralism is to account for their entanglement without assuming that the former entails the latter, or that the latter is always justified when the former exists. I argue here that a complex notion of authority, in which both reasons and relationships determine the existence and justification of authority, can clarify the relations between plurality and pluralism by pointing to a mode of subject-centered analysis and evaluation that does not presume either plurality’s justification nor pluralism’s analytical purchase. When both authority’s reasons and relationships are pluralized vis-à-vis the subjects of those reasons and relations, the very existence and justification of authority depends on the ways in which plural claims and receptions of authority interact, as well as on the impact of such interaction on the values that pluralism might carry. Such a view of authority should sound a note of caution for those who explore, evaluate, or endorse the claims to authority made by various phenomena of legal plurality that are the objects of the present collection on global legal pluralism. It raises a set of concerns about both the plausibility of such claims, their evaluation in relation to each other, and the potential for plurality of claims and invocations of authority to exist without pluralism itself being justified—for there to be space between plurality and pluralism.

Manifestations and Arguments

While the term “legal pluralism’ literally denotes a plurality of legal orders, it is their plurality of and the distinguishing features between them, which continues to make the subject matter a very charged and hotly debated one. Seen through the lens of legal sociology and anthropology, the plurality of coexisting, normative orders appears, above all, as a matter of description, as a fact of social ordering. Meanwhile, as some of these normative systems are being claimed as being “law,” while others are associated with nonlegal forms of social order, such as customary, traditional, or indigenous norms as well as, perhaps, sector-specific rules of professional or industry conduct, the categories used to draw the lines between legal and nonlegal norms become in themselves highly contentious. The chapter argues that to neglect the fundamental distinction between legal pluralism as “manifestation” and as “argument” perpetuates a troubling inability on the part of positivist and analytical legal theory to engage with law’s inherent instability. Especially at a time, where the actors, norms, and processes that together constitute and shape emerging transnational regulatory regimes are located and operating both within and beyond the state as the purportedly singularly competent authority of law creation and enforcement, the deconstruction of “legal pluralism” as “nonlaw” and threat to the state can serve as the foundation for a new, critical legal theory.

An Anthropological Perspective on Legal Pluralism

The concept of legal pluralism has proved enormously fruitful in challenging ideas about the centrality of state law and increasing awareness of the diversity of ways that individuals interact with the law. As scholars seek to understand international law as a sociocultural as well as a legal field, the concept of global legal pluralism offers a useful framework. It provides a way to theorize the fluidity and fragmentation of international law as well as its spaces of openness and opportunity. It is a way to understand its regulatory role in conjunction with regional, national, and local systems and the structures of local, national, and global power which shape its practices. The concept of global legal pluralism highlights both the global nature of the new legal terrain as well as the relative normativities of various orders, from the strictly “legal” to those based on cultural practices rather than state law. The anthropological concept of legal pluralism helps to understand the complexity of the global legal order, with a focus on the way its fragmentation and incommensurability operates in practice in the highly complex sociocultural global situation.

On the Verge of Citizenship

The requirements of naturalization tell us a great deal about a given society’s vision of citizenship, the expressive function of law, and the power dynamics revealed when one stands on the cusp of membership. Contributing the burgeoning literature on global and domestic legal pluralism, this chapter explores how states determine “who belongs” to the political community, and according to what criteria. It also reveals the centrality of agency and resistance in testing the boundaries of membership. Combining insights from law and political theory, the chapter offers a fascinating study of the textual and performative aspects of the citizenship oath and its centrality to the process of becoming a member, especially in diverse societies negotiating the trilemma of constituting identity, respecting diversity, and promoting equality.

Fighting Fundamentalism with Pluralism

What role can social media play in helping to bring forth social revolutions, inciting change not in government or laws but in social attitudes and real world behaviors? Social change relates not only to regime change but to change in people’s way of thinking. In this chapter, I argue that social media during the Arab Spring was used as more than a mere coordination tool promoting efficient street demonstrations. Bloggers and Facebook users employed these technologies in many of the same ways that the printing press was employed during the Enlightenment period—to upend traditional authorities, to engender popular participation in debates over governance and values, and to foster care and empathy for fellow citizens. Contrary to popular perception, the Arab Spring demonstrates how today’s technological tools can go the next mile and transform not just politics but societies themselves. In the particular context of religious democracies, through examples, the chapter explores how nonstate actors are helping to influence constitutionalism and other lawmaking in Muslim majority states by using technologies to elaborate plural normative and legal options, thus undermining fundamentalist stranglehold on social and legal authority.

The Overlapping Web of Data, Territoriality, and Sovereignty

The rise of a globally interconnected internet and, in particular, the ways in which highly mobile data transits and is accessed across state borders pose a particularly profound test to the notion of the sovereign-territoriality link. Data is, after all, both unterritorial and multiterritorial. It can move across territorial boundaries with the speed of light. It can be copied and held in multiple locations at once. It can be remotely accessed and controlled by users who are separated by territorial boundaries from the data that they are accessing. And it can be accessed and manipulated by multiple different people—or governmental entities—simultaneously. This chapter explores these implications for privacy, speech rights, and security—examining the ways in which states are increasingly exercising or seeking to exercise power, via manipulation of data, across territorial borders; the clashes that emerge; and the role and power of private entities in managing competing norms across borders.