The Effect of Globalization on the Interactions among Legal Systems: Case Studies

Dear Colleagues,

We are living in dark, dark times. Many of the institutions of interlocking governance and democratic coexistence that have been carefully nurtured since 1945 are under attack. Nationalism, tribalism, xenophobia, and racism are fueling right-wing populist revolts against this legal order despite the fact that the period since 1945 has seen rises in health, longevity, prosperity, and peace that are perhaps unparalleled in human history.

Most fundamentally, we are in grave danger of losing sight of the core values that were forged out of the ashes of World War II and its unimaginable horrors. Those values include the very idea of democratic dialogue, international cooperation, protection of human rights, respect for diversity, the moral worth of each individual, the idea of limits on what nation-states can do to pursue their self-interest, and so on.

Paradoxically and tragically, this move towards greater insularity and tribalism comes at a time when many of the problems facing the world increasingly require coordinated solutions and more interaction among legal and political systems, not less. Such problems include: issues of how we will effectively maintain life on this planet (climate change, biodiversity, ecosystem losses, and water deficits); issues of how human beings will sustain themselves on it (poverty, conflict prevention, and global infectious diseases); and issues of how we will develop global cooperative rules for living together given that much human activity crosses territorial borders (nuclear proliferation, toxic waste disposal, data protection, trade rules, finance and tax regimes, and so on). These sorts of problems cannot plausibly be addressed solely within one legal system.

Yet, despite these obvious needs, we see resistance to global governance or universalistic solutions. This resistance may stem from concerns about the democratic accountability of such solutions or a belief that global solutions are intrinsically hegemonic. Indeed, an emphasis on the global might seem to give insufficient attention to the local affiliations and emotional attachments people at least sometimes hold onto most assiduously. Or universalism might be seen to trample on the ideal of diversity altogether.

Thus, the legal challenge of our time is how to build mechanisms for engagement among legal, political, or cultural systems that recognize at least a limited set of shared values and promote mutual respect, dialogue, and cooperation, without requiring all systems to be homogenized into one universalistic legal order. We must create what David Held has called “the ethical and political space which sets out the terms of reference for the recognition of people’s equal moral worth, their active agency and what is required for their autonomy and development.” But at the same time, we must recognize that the meaning of principles such as equal concern and regard, human dignity, and so on cannot be specified once and for all, separate from the diversity of traditions, beliefs, histories, and cultures that make up human societies. In the end, what we need are institutions, procedures, and practices that allow for dialogue and cooperation under conditions of diversity.

This special issue seeks to collect case studies regarding such institutions, procedures, and practices. Contributors will analyze specific efforts to manage the interaction of legal systems by building pluralism and dialogue among multiple communities into legal mechanisms. Contributors will also evaluate the effectiveness and multiple impacts (both positive and negative) of such efforts.

Prof. Paul Schiff Berman
Guest Editor

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• Globalization
• Legal Pluralism
• Legal Interaction
• Multiculturalism
• Conflicts of Law
• Jurisdiction
• Responsivity
• Margins of Appreciation
• Subsidiarity
• federalism
• Hybridity