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 1

GLOBAL LEGAL PLURALISM: MULTIPLE REGIMES AND MULTIPLE MODES OF THOUGHT

Martti Koskenniemi
Harvard, 5 March 2005

In October 2001 Ireland filed a case against the UK in the UN Law of the
Sea Tribunal in Hamburg concerning the operation of the Sellafield
nuclear enrichment plant in Britain. A year and a half later the
Commission of the European Union gave a statement according to which the
matter related to the competence of the Union. The European Court of
Justice in Luxembourg was seized.

In June 2003, the President of the Arbitral Tribunal constituted under

the Law of the Sea Convention suspended the procedures. The President,
Thomas A. Mensah pointed to the fact that the competence Ireland was
exercising in filing the case may, under European Law, have been
transferred to the European Union and that there was a real possibility
that the matter would be decided by the ECJ. Consequently, there was a
risk of overlapping judgements between two international bodies both of
which had prima facie jurisdiction.

"Any decision of the ECJ on the issues identified above will

be decisive and binding as to the question of European
Community law. At the same time, by virtue of Article 11 of
Annex VII to the 1982 Convention, the decision of the Tribunal
will also be binding on Ireland and the United Kingdom as
Parties to the dispute" (para 10).

Yielding in favour of the Luxembourg Court, the President of the

Arbitration Tribunal used a language that revealed an interesting
informal hierarchy between multiple legal regimes and modes of thought.
He said:

"The Tribunal considers that a situation in which there might

be two conflicting decisions on the same issues would not be
helpful to the resolution of this international dispute. Nor
would such a situation be in accord with the dictates of
mutual respect and comity that should exist between judicial
institutions deciding on rights and obligations as between
 2

States, and entrusted with the function of assisting States in

the peaceful settlement of disputes that arise between them"
(para 11).

The reader is struck by the terms in which the conflict is addressed:

"dictates of mutual respect and comity". This is a gentlemen's affair.
Whatever environmental or economic interests may be involved, we must
deal with this as civilised men. We are here only to "assist states", he
says and then gracefully steps down in order to make room for the
European Union. A thoroughly modest, traditional - even traditionalist -
view.

My intention is not to criticise that decision, only to point to the

terms in which the President dealt with the situation. Two legal regimes
conflicted and the vocabulary he found to address the conflict was
Victorian politeness. Of course, there was no self-evident vocabulary
available. The decision was made in a situation of existential freedom;
revealing the solid centre of the President's professional universe.

It is not clear that the European Court would have found the same centre,
nor perhaps any other body committed to something beside "assisting
states". Imagine the Appellate Body of the World Trade Organisation, or
the UN human rights committee, an environmental treaty body or a national
supreme court in a similar conflict: Would they also yield? Could they?
Should they? Or might they rather use their jurisdiction to resolve the
case as they see best within their respective regimes?

We often address the transformations of the international world in terms

of fragmentation. The suggestion is that where once there was unity,
there is now a splintered and fractured world. This is a familiar way to
discuss modernity. Sociology arose in the late 19th century as an effect
to map the breakdown of traditional society into increasingly
specialised, functionally organised ways of life. This took often place
in sombre tones, as tragedy, anomie, suicide, the iron cage. Think of the
President of the Arbitration tribunal stepping down, and the famous
prediction by Marx: "all that is solid melts into air, all that is holy
 3

is profaned, and man is at last compelled to face with sober senses, his
real conditions of life, and his relations with his world".1

Much 20th century debate about Western modernity may depicted as a

succession of perceptions about breakdown, explosion, dispersal,
fragmentation, followed by reassuring counter-narratives that explain the
apparent chaos as mere complexity, healthy pluralism, dynamism, freedom.
Dadaism emerged to give voice to a perception of chaos in a world whose
verities had been blown to pieces by 1914. But a depiction of absence of
sense, too, may create sense. Soon no tourist could leave Paris without a
reproduction of a Dada artwork under his arm. The logic of capitalism
assures observers that plurality is merely a surface underneath which the
invisible hand will reproduce the conditions of bourgeois accumulation.
With the crash of that faith in Wall Street in 1929, radical politics
could, for a moment, imagine themselves representing the lost unity in
the power of the nation, or the class, harnessing modernity for single
causes.

The Cold War, too, we now understand was both split and whole - "split"
if examined from the perspective of the conflict of regimes - "whole"
when dressed in the realist vocabularies of the eternal laws of power,
interest and ambition. Should one really feel nostalgic about that?

This play of unity and fragmentation is quite central for the development
of Western law, too. Since the 17th century (Hobbes and Grotius) law has
presented itself as the antithesis to fragmentation, leading from the
chaos of civil war to the unified nation, from inter-state anarchy to an
international legal community. 18th century natural jurisprudence -
Samuel Pufendorf in Germany, Adam Smith in Britain - turned the sceptics'
fear of human self-love into a scientific explanation for enlightened
absolutism on the one hand, and a receipt for the wealth of nations on
the other. As mercantilism transformed into free trade, statesmen and
lawyers learned the paradox of anarchy as the driving force of unity. So
did philosophers. In his 1784 essay, "Idea for a Universal History with a
Cosmopolitan Purpose" Kant drew attention to the cunning of history as it
compelled harmony out of crisis. This was the "unsocial sociability" of
which he wrote the following:

"Wars, tense and unremitting military preparations, and the

resultant distress which every state must eventually feel

1
Marx and Engels, The Communist Manifesto
 4

within itself, even in the midst of peace - these are the

means by which nature drives nations to make initially
imperfect attempts, but finally, after many devastations,
upheavals and even the complete inner exhaustion of their
powers, to take the step which reason could have suggested to
them even without so many sad experiences - that of abandoning
the lawless state of savagery and entering a federation of
peoples in which every state, even the smallest, could expect
to receive its security and rights not from its own power or
its own legal judgement, but solely from this great
federation".2

Modern law was surely the epitome of unity over a fractured world. From
the Napoleonic wars until 1871, the unity of German nation was kept alive
by the unity of German law. Ubi jus, ibi societas. Law's unifying power
was sometimes causal but more often hermeneutic; the gift of a vocabulary
that gives sense to plurality. This is also European constitutional
patriotism today - bridging social conflict by focusing solidarity on a
constitutional text. When every unifying deep-structure has been
subjected to demystifying deconstruction what is left is -
demystification deconstruction as the great unifying myth.

Unity and fragmentation are matters of narrative perspective. What from

one angle looks like a terribly distorted and chaotic image of something,
may from another appear just as a finely nuanced and sophisticated
reflection of a deeper unity. E pluribus unum. There must be dozens of
national symbols and myths that tell the story of how separateness and
individuality express togetherness and community. Surely this dual
structure, fragmentation as unity, is both a secret of liberalism's
success and a source for its continued vulnerability to critiques from
alternative ideals of community or receipts for freedom.

The same is true of the tradition of redescribing the international world

in terms of the heterogeneity of interests that clash against theories of
functional interdependence from the perspective of which the world indeed
seems united. The pragmatic compromise to treat the international world
as an "anarchic society" finds its parallel in contemporary legal
theories that juxtapose old diplomatic laws of coexistence and co-

2
Immanuel Kant, Idea for a Universal History with a Cosmopolitan
Purpose, in Political Writings (Hans Reiss, ed., Cambridge University
Press, 1991), p. 47.
 5

operation with incipient “vertical” regulation relying on universal

values.3 Every aspect of the world takes the form of Arthur Koestler's
"janus-faced holons" - wholes and parts at the same time, free as
individuals, constrained as members of a unit4 - a view elegantly
reproduced in Niklas Luhmann's theory of law as a functionally
differentiated social system.5

As matters of narrative perspective, unity and fragmentation are powerful

interventions in the world. To present the world as fragmented, chaotic,
senseless, is often a prologue for a hierarchy in which the speaker's
perspective is imposed on the world. Think of the anarchy of
sovereignties, relativism, protectionism, rights violated under the
pretence of cultural difference: surely there must be a court and a law
to deal with that. But which law, and whose court? Unity is a hegemonic
project. It seeks the predominance of my perspective, my institution.
Against this, we are accustomed to depicting the world - or some aspect
of it - as oppressively homogenous, ruled by a totalising logic of power,
globalisation, empire. Plurality as a counter-hegemonic strategy.
Multiplicity of laws and regimes - and sovereignties, why not? - as a
receipt for freedom, innovation, novelty.

It is against this background that I wish to discuss the concern about

multiple legal regimes and multiple modes of thought. I shall begin with
a description of the professional points of concern with fragmentation
(Section II). I will then outline two responses to it: constitutionalism
(Section III) and legal pluralism (Section IV). I will end with a few
words on the politics of incommensurable regimes and modes of thought
(Section IV).

II FRAGMENTATION - SOCIOLOGY

The debates over present fragmentation throw an ironic light over the
past. If one theme unified the way past generations understood the

3
This was the theme of a large symposium on the work of Wolfgang
Friedmann, organised by the European Journal of International law in
1997. Of the many explorations, see e.g. Abi-Saab (1998), pp. 248-265.
This oscillation between a description of the world in which sovereignty
has been “thinning out” and one in which “the ramparts of old-fashioned
sovereignty are still strongly manned” is also nicely manifested in Tom
Farer’s article in this issue. See his “Toward an Effective
International Legal Order: From Coexistence to Concert”.
4
See Arthur Koestler, The Ghost in the Machine (London, Picador, 1967).
 6

international world, this was as a completely decentralised, disparate

national rationalities, world-views and value-systems each claiming total
control over a population and independence from others. Sometime in the
1990's this began to seem a rather well-ordered and firmly structured
world. It was retrospectively possible to describe it in terms of the
tranquil globalisation of the Western State form, the single rationality
of public diplomacy here, the empire of Western economics and civil
society there. Only that can explain the worry over fragmentation today.
The most vocal Cassandras have been Presidents of the International Court
of Justice who in successive speeches to the UN General Assembly have
voiced their concern over the proliferation of international law-applying
institutions and the increasing divergence of their jurisprudence,
leading to conflictual judgements, forum-shopping, uncertainty and
unpredictability in the law and, I quote from the speech of one of them,
"loss of overall control".6 My first suggestion is this: the debates
about fragmentation highlight the loss of hierarchical position by
institutions of the ancien régime.

The concern is that new institutions and regimes in economic law, human
rights law, criminal law, environmental law and regimes strong in local
contexts - European Union, the ASEAN, African Union - will represent new
interests and develop biases that deviate from those of old general law.
Fragmentation is about a hegemonic conflict: which institution will be
entitled to take the voice of general law? What vocabularies and forms of
expertise will rule us in the future? Three types of fragmentation within
traditional international law may be distinguished.7

First, new institutions sometimes interpret the general law in new ways.
In the Tadi case in 1999 the Appeals Chamber of the International
Criminal tribunal for Former Yugoslavia (ICTY) replaced the standard of
“effective control” as the rule governing the accountability of foreign
States over acts of parties in civil war laid down by the ICJ in the
Nicaragua case in 1986 by the wider standard of “overall control”. By
this move, the ICTY - or more concretely, its ambitious President -
sought to increase such accountability in the struggle “against impunity”
(The Prosecutor v. Dusko Tadi 1999, p. 50, para 122).

5
Niklas Luhmann, Law as a Social System
6
See Koskenniemi & Leino, Fragmentation of International Law: Postmodern
Anxities', 15 LJIL (2002), p. 554-555.
7
This follows the debate conducted within the International Law
Commission at its Session of 2003. See Report of the ILC from its 55th
 7

Secondly, a less ambitious technique is to set up new regimes as

exceptions to the general law. Human rights treaties, for instance, are
interpreted by human rights organs differently from“regular” treaties.
The departures have been justified by emphasising the “object and
purpose” of such treaties over the strict formalism of traditional law.
This has enabled human rights bodies to understand their powers
extensively (e.g. Human Rights Committee, General Comment No. 24 (52),
CCPR/C/21/Rev.1/Add.6). It is striking to what extent the development by
the European Court of Justice of a “fundamental rights jurisprudence” has
taken place in response to the challenges from the supreme courts of
certain member states to its jurisdiction. Here the move from an
economic to a rights vocabulary has been undertaken as a hegemonic move
to defend one's superior position - the ability to decide with normative
superiority and direct effect.

A third fragmentation pits particular regimes against each other: trade

against environment, human rights against humanitarian law, law of the
sea against European community law. Whether some issue is qualified as a
“trade” or “health” problem (e.g. European Community - Measures
concerning Asbestos and Asbestos Products 2001, p. 61 para 168), or
whether its dominant concerns are those of an “human rights” or
“security”, involves struggle for competence to decide. A fisheries
issue may be seen in terms of the protection of natural resources or
freedom of trade and contextualised either as part of a universal (WTO or
Law of the Sea) or regional (European Union) regime. Each classification
points to a different authority that will decide, with preferences and
practices deviating from those of competing bodies.8

But globalisation has also created normative vocabularies outside

traditional public law. For example, international relations experts
today speak confidently of international regulation that takes place
through private, partly public or public-private sources and
institutions, or through collaboration between private companies,
national administrations, interest groups and technical bodies. Best
practices of industries, and standardised technical solutions contribute

session (A/58/10), p. 270-271, para. 419. See also Koskenniemi and Leino
(2002), pp. 553-579.
8
The MOX Plant case, for instance, having to do with an Irish complaint
about the operations of the Sellafield nuclear facility in the United
Kingdom involves the competing jurisdiction of the Law of the Sea
 8

to an effective regulation of international activities. International

relations scholars have even sought to resuscitate lex mercatoria as a
private regime of norm-creation, application and dispute settlement. To
agonise over the suitability of all this in view of received ideas about
legislation is beside the point. The vocabularies of constraint are
cognitive rather than normative, truth-regimes rather than rule-regimes.
They do not emerge from political persuasion or compromise, but from
economic, military, or technological necessities. Consumer protection
within e-commerce, for instance, may need to take place in the informal
mechanisms of the web - anything else would be commercially and
technically simply impossible.

Multiple regimes, multiple forms of legal thought, public and private,

forma and informal, locked in hegemonic manoeuvres - trying either to
occupy the voice of the general or, if that seems too difficult, at least
suitable exceptions. Can all this be managed by a single concept of law?

III CONSTITUTIONALISM

The immediate response by international lawyers - especially European

lawyers - has been to call for constitutionalisation, to organise the
proliferating institutions and rationalities into firm hierarchies.
Having rehearsed their constitutional skills within the European Union,
European lawyers have enthusiastically employed that vocabulary also to
the wider world.

This continues their 19th century project to move away from the world's
division into separate self-regarding sovereignties. After the first
world war, lawyers increasingly decided to think of the international
world as they thought of the domestic: even as sovereigns, States were -
like individuals in the domestic order - submitted to a law that
transformed them into legal subjects within an international (legal)
community. The law was not just disparate treaties emerging here and
there from incidental diplomatic compromise. Instead, it was a system the
parts of which were linked either by formal delegations of validity or
material values.9 You could not just take a little bit of the law, these

Tribunal, the Permanent n Court of Arbitration and the European Court of

Justice. For a brief overview, see 106 RGDIP (2002), pp. 196-206.
9
See especially Alfred Verdross, Die Einheit des rechtlichen Weltbildes
auf Grudnlage der Völkerrechtsverfassung (1923) and Die Verfassung der
Völkkerrechtsgemeinschaft (1926).
 9

lawyers were saying, and leave the rest aside. System - and thus
constitution - was intrinsic in juristic thought, implied in legal
concepts. This did not necessarily lead into idealism. The system could
always be described so that sovereignty and vital interests were
safeguarded. Perhaps, after all, States were free precisely because that
is what the law says.

Constitutionalism is not necessarily a conscious project. As a field of

thought and action, the international is always already functionally
united. In the early case of Georges Pinson (1928), a claims commission
interpreted a treaty in the absence of specific indications on how this
should be done. It did not hesitate to state as follows:

"Every international convention must be deemed tacitly to

refer to general principles of international law for all the
questions that it does not itself resolve in express terms and
in a different way".

Inter-war international lawyers used this and other cases to show that a
legal regime - for instance a treaty regime - never existed in a vacuum.
No lawyer will refuse to find States as States, or ask for evidence for
the rule of audiatur et altera pars merely because the regime is silent
about such matters. They are structurally given, not positively enacted.
In its very first case, the Appellate Body of the WTO observed that the
WTO agreements "should not be read in clinical isolation from public
international law" and later specified that "[c]ustomary international
law applies generally to the agreements between WTO members". A legal
regime such as the European or Inter-American human rights convention
makes constant reference to general international law without any act of
incorporation. As part of the proliferation debate, two high-ranking
members of the courts of Strasbourg and San José published a joint text
last year insisting their regimes being part of general international
law. That point is also made in Article 31 (3) © of the Vienna Convention
on the Law of Treaties according to which any treaty must be interepreted
taking into account "any relevant rules of international law applicable
between the parties".

[In this regard, as German jurisprudence always suggested, the law is a

complete system - not just an aggregate of incommensurate regimes in
accordance with the image of 10 Chapter in H.L.A. Hart's The Concept of
Law. There is not a single uncontroversial incident where an
 10

international legal body would have declined to apply the law because
there was no law on the matter.]

For the past two years I have headed the Study Group on Fragmentation in
the International law Commission. We have examined the nature of
autonomous - that is to say, so-called self-contained regimes, functional
systems devoted to particular rationalities - but have found no evidence
from legal practice that these would be outside general international
law. Many of them have special secondary rules - rules for rule-creation,
rule-application and rule-change. This is precisely what makes them
special. But when the rules run out, or the regime fails, then the
institutions always refer back to the general law that appears to
constitute the frame within which they exist.

Here is a battle European jurisprudence seems to have won. Law is a

whole. You cannot just take one finger out of it and pretend it is alive.
For the finger to work, the whole body must come along.

But how useful is this victory?

There is an aspect of Münchausen - or autopoiesis, as Günther Teubner

would say - in these debates. It is not very surprising that when
international lawyers examine international law cases, they will find
that the pieces do fall into place. If you ask an international lawyer
whether international law applies to a case, they will respond "of
course" - either the person has the right she claims, or then she hasn't.
There is no third alternative. But this will still leave two questions
open: first, what does the law say? And second, why would that matter?

European lawyers are correct to say that special legal regimes do not
float in a normless vacuum. But they do not have determinate hierarchies
to resolve conflicts between them - a language, but nothing definite to
say with it. This is, of course, an aspect of the indeterminacy of those
rules, principles and institutions - I do not need to elaborate this
point in front of this audience. While the Commission discovered that no
regime, however special, was autonomous from general law, it failed to
give any indication on how to deal with conflicts between the special and
the general or between the various special and general rules inter se. An
EU rule might derogate from law of the sea, or a regime on the use of
force might conflict with a principle of humanitarian law. What to do in
such cases would depend on the circumstances. The inability to establish
 11

a general hierarchy between the special and the general is hardly a

surprise. After all, the mere generality or speciality of a regime gives
no good reason to prefer it. The tension between universalism and
particularism is not this easy to resolve.

Legal practice may always be interpreted in a constitutional light:

everything is always already regulated. But the constitution only says
that everything should be decided according to it - which is to say that
legal institutions should decide, in particular institutions populated by
public international lawyers. But if that is all the law says, then it
only underwrites the structural bias of its institutions. This may be
fine if one is a member oneself. But if one does not share that bias but
instead rather thinks it as part of the problem, then constitutionalism
has no compelling force. Instead, the appropriate response to the claim
that there is an international constitution would be "So what?" Surely
what matters is whether it is a good constitution, whether it empowers
the right people, whether it allocates resources in accordance with the
right bias.

A constitutional vocabulary itself has nothing to show why it should be

preferable to, say, the vocabularies or economics, technology, socialism,
nationalism, or Christianity. They too, come with their own experts and
institutional biases. There is no reason to think of them as a priori
worse that the institutions constitutionalists typically prefer - courts
in particular, especially courts populated by Europeans. In fact,
constitutionalism can defend itself only by recourse to some such
vocabulary - typically that of liberal political theory - that is itself
subject to on-going political contestation.

[There are many ways to challenge the appropriateness of using a

constitutional vocabulary in the international world. It may, for
example, be claimed that the notion of “constitution” cannot be usefully
detached from States. The idea of constitution was born with the American
and French revolutions. It implies not just any legalisation but a
particularly intensive form of legalisation. It is usually understood as
a special law that organises the exercise of political power. This
requires that the exercise of political power has been differentiated as
a special social function distinguishable from other forms of exercise of
(economic, military, social) power. This was not the case in Antiquity or
in the Middle Ages, nor is it true internationally now.
 12

This is not just a technical problem. The constitution is an

articulation of the public power of a people. The specialised bodies
whose relations the constitution regulates express the people's power.
But there is no international people - apart from the people of the
world. And they do now have a representation that would be distinct from
their states. To start from this, however, is precisely the traditional
project of public international law. It is what constituted the original
problem. In other words, constitutionalism is an agenda for change, not
just an additional legitimation bit for the existing system. But if it is
a political project, then its merits must be assessed in political terms.
Whom does it seek to empower? Who is it for and who is it against? ]

Constitutionalism responds to the worry about the “unity of international

law” by suggesting a hierarchical priority to institutions representing
general international law (especially the International Court of
Justice). This form of constitutionalisation is hardly forthcoming.
Fragmentation is, after all, the result of a conscious challenge to the
unacceptable features of that general law. This is why the question of
the hierarchy between the various regimes will hardly be resolved in any
near future. The general agreement that some norms simply must superior
to other norms finds no parallel in regard to which who should have final
say on this. The debate on an international constitution will not
resemble domestic constitution-making for the simple reason that not only
does the international realm lack a pouvoir constituant but that if such
presented itself, it would be empire, and the constitution it would enact
would not be one of an international but an imperial realm.

IV. LEGAL PLURALISM

The alternative to constitutionalisation is legal pluralism.

Internationalists have not done much to explore this - though realists
are also de facto pluralists. But where domestic legal pluralism has been
a project on the political left, the pluralism malgé soi of realism has
been conservative in method and policy. For example, in inter-war France,
the solidarist constitutionalism of Georges Scelle or Nicolas Politis
were developed on the basis of 3rd Republic radical liberalism, even
socialism. Against them, realist historians such as Charles Dupuis
ridiculed the effort at getting away from sovereignty as naive and
pointless - without sense for the law's cultural and historical moorings.
The League's cosmopolitan facade failed because it had no contact with
 13

the material power of nations or the spiritual power of the public

opinion. Only balance of power between those plural points of political
reason called States would be reflective of the diversity of the
international realm.

A more famous manifesto of pluralism avant la lettre was Hans

Morgenthau's legal swan song, his article on "Positivism, Functionalism
and International law" of 1940 that indicted the whole of the inter-war
legal system for its lack of a sociological grounding on the one hand,
and its insensitivity to the actual divergence of moral values in the
world, on the other. Its fixation to one single centrist model made it
insensitive to divergent political and moral contexts. Using the
domestic-constitutional model was a receipt for failure.

But Morgenthau's plea for a anti-formal pluralism led him beyond the
vanishing point of jurisprudence. If law is a "reflective" mirror of
social or psychological phenomena, ambitious minds will turn away from
it: why look at something merely epiphenomenal? With his "Politics Among
Nations: The Struggle for Power and Peace" of 1948, Morgenthau
established International Relations on the ruins of constitutional
thinking in world affairs. But no legal sociology emerged, only a spirit
of instrutumentalism that has been the natural home of US legal academia
ever since.

[It would be wrong to say that has been no effort to build a realistic
study of international law on the fact of the world's pluralism.
Lauterpacht, after all, knew well Harold Laski - the father of pluralism
- at the LSE and participated in the School's famous sociological club
together with eminent sociologists and anthropologists such as Bronislaw
Malinowski or Edward Westermark and IR scholars such as CAW Manning or
Martin Wight. In fact, he also gave lectures to Manning's international
class and as he moved to Cambridge in 1938 Manning felt this a terrible
loss to the School. Nevertheless, it was not Lauterpacht but his critics
that sought a way to something like an international legal pluralism.
Julius Stone publicly attacked Lauterpacht's constitutionalist tract The
Function of Law in the International Community of 1933, arguing that the
idea of the completeness of international law was a counterproductive
piece of legal utopianism that did not see to what extent it was
important for international law on its very premises of peace and justice
to refrain from regulating everything. Stone had collaborated with Pound
in Harvard and wrote in the 1940's and 1950's on the relations of
 14

international law to what he called its social substratum. In a 1957

course at the Hague he enquired about the possibility and prospects of a
sociological analysis in international law - that is of the study of the
attitudes, perceptions and evaluations transmitted in communication
between individuals in significant policy-making positions in the world.
He was not optimistic. The sociology of international law, he concluded,
"must move still in a difficult and unknown land, with conditions unknown
and paths unablazed".10

In the near half-century after Stone, no sociology of international law

has emerged beyond generalisations about interdependence and the balance
of power. It may now be possible to historicise this effort in a
particular post-war moment of disillusionment for which a turn to
sociology gave expression. Also, the continuing Methodenstreit within
sociology itself made it impossible for Morgenthau or Stone to take their
own scientism seriously. If McDougal and his Yale followers still used a
vocabulary of process, this was not for the purpose of reflecting on the
conditions of a pluralistic world but to strategise about how to advance
"Amercian values" on it. It was not anti-constitutionalist but
constitutionalist in a Schmittian sense, focusing on the material, not
the formal aspects of the order it wished to inaugurate.]

Today, a well developed vocabulary of legal pluralism has emerged from

three sources: (1) the study of local laws and de facto practices in
modern society; (2) the experience of native law's coexistence with
imported metropolitan laws in the colonial encounter and, (3)
globalisation. In the huge literature on this last phenomenon two
concerns have been predominant: a wish to develop a descriptively
accurate image of the ways of influence in today's world and a desire to
enhance their accountability. Morgenthau's programme in modern
vocabulary, in other words.

Much could be said about the effort - starting in the 1990's - to develop
pluralistic models of global governance that would focus on the de facto
fragmentation of increasingly informal rule-setting, rule-administering
and conflict-settlement in a globalised realm. I am uncertain if present
discussions of lex mercatoria, or of the informal networking by private
industries, non-governmental stakeholder groups and national
administrations have produced a stable basis for a formal pluralist

10
Julius Stone, Problems Confronting Sociological Analyses in
International Law', 89 RdC (1956-I), 141-154.
 15

statement. I rather doubt this. Inter-legality and polycentrism have not

become much more than buzzwords. By far the most advanced statement has
emerged from the sociology of Niklas Luhmann that embraces not only
normative developments but also the functional differentiation of
scientific, technological and economic systems that interact only in
reaction to disturbances in each others' environment. This gives a basis
for reflecting on the clash of self-reproducing rationalities each of
which possesses the resources for explaining the whole world, and an
inbuilt tendency to maximise its own rationality.

Legal globalisation will become globalisation of the functional

differentiation that existed in the national society. Transnational
regimes would replace territorial ones, regimes replace States. Far from
a unifying the world, this would intensify the clash of legal regimes and
modes of thought, some more central that others, each organised through
an internal hierarchy. The best hope for anything unifying would come
from a system of regime-co-ordination, and inter-systems law that would
resemble the private law of conflicts.

From this perspective, conflicts between, say, trade and human rights,
economic development and the environment, scientific and political
expertise can never really be settled because there is no meta-
rationality that would allocate to each its respective place or
hierarchical position. Instead of co-ordination from some higher level,
there will be a series of more of less violent adoption of jurisdiction
by one expert institution where the matter had previously been dealt with
by another. No hierarchy is established, but the centre moves. Yesterday,
we looked at the UN General Assembly as the focus for our reforms, today
perhaps the Doha process at the WTO, Beijing's economic policies or NGO
networks seeking to deal with human trafficking.

Each rationality and expert system is involved in a hegemonic project: to

make my rationality govern the whole - to make my preference, the
structural bias of our institution, the general preference. From the UN
and elsewhere, the experience is familiar that once one knows which
institution will deal with an issue, one already will know how it is
disposed of. For the sociologists, such as Teubner and Fisher-Lescano law
becames again epiphenomenal: "a legal reproduction of collisions between
the diverse rationalities within global society". A part of the problem
and not of its solution, law has no argument to defebd its ambition to be
 16

the meta-discourse. All it can be is "a gentle civiliser of social

systems".

The problem with legal pluralism - that is the approach that seeks to
grasp all the different rationalities effective in the world - is the way
it ceases to pose demands on the world. Theorists of globalisation are so
enchanted by the complex interplay of the technical regimes and a
positivist search for a vocabulary that would encompass all of them,
losing thus the critical point of their exercise. This is visible, for
instance, in the habit of collapsing the distinction between law and
regulation, a favourite technique of international relations study, and
to describe law as a another regime in thoroughly instrumentalist terms:
"legalization" as a policy-choice sometimes dictated by strategic
interests. I like to think of this as a hegemonic move on the part of
international relations experts in an effort to occupy the voice of
normativity previously held by lawyers. A sociology of complexity
articulates a project of technological reason that seems, after all, so
much more up to date than the Victorian antics of international law. This
is Georg Jellinek's normative power of the factual - law and politics
replaced by what the newspeakers call "new global division of regulatory
labour".11 How familiar the blank stare in the eyes of European lawyers
when "regimes" get spoken!

The wider the law's grasp, the weaker its normative force. Until finally
one becomes unable to distinguish between the gunman and the policeman,
the regime of corruption from the regime of contract. Of course, each may
seem acceptable from some perspective. But international law never
occupied just "some perspective". From the outset it had a political
project that I have sometimes described in terms of "gentle civilising" -
a set of objectives culturally linked with what is liberal, cosmopolitan,
humanitarian. So legal pluralism may be descriptively right - just like
constitutionalism was - but occasions the same response: "So what?"
Perhaps there are expert vocabularies, patterns of de facto control and
order. But why should anyone care? Law speaks not only of empirical or
technical facts. It is a utopian, aspirational face that speaks not about
what can or may me done but what should be done; this is a political
question.

None of this is to say that one should not acknowledge the emergence of
new forms of rule-creation, application and change. The point is to
 17

search for a language that can distinguish between, say, widely held
perceptions of economic and military necessity and the law, the
vocabularies of humanitarianism or environmentalism and the law. But
there is no legal criterion by which to do this, where the limit between
the vocabularies - and the jurisdiction of the relevant expert
institutions - should fall. It is quite possible to speak of terrorism in
terms of policing or military jurisdiction, social causes, psychological
dispositions and moral principles. Each vocabulary points to a different
type of expertise, and different institution, a different manner of
allocating resources. The new debates about "security" today juxtapose
threat perceptions arising from sickness, poverty, violence and so on:
what "security" means for different people is indissociable from their
preferences. A law that would speak to large number of people should
somehow avoid being collapsed into any single technical rationality of
this type, its aspirational face being precisely about contesting the
power of such rationalities. Let me come back to this in a moment.

*****

Constitutionalism and legal pluralism are two general, abstract

responses to multiple legal regimes and multiple modes of thought. Each
comes with a disciplinary tradition and a political sensibility, split
against itself. In its self-confident, ruling mode constitutionalism
comes to us as centralism, order and hierarchy. Its emotional attachments
are to the rule of law, European histories of national construction. We
have seen this in the EU - the draft constitutional treaty may be hard to
figure out but labelling it constitution brings in powerful connotations
to the past of European state-formation. In its ruling mode,
constitutionalism is also linked with bureaucracy and authoritarianism,
however, to a principle of legitimacy buttressing the ancien regime. But
constitutionalism has also a subsidiary mode as the critique of rule, as
a vocabulary of rights, acountability and transparency.

The same dialectic is visible in legal pluralism, in a reverse way.

Pluralism's self-confident ruling mode highlights diversity and freedom,
the natural development of that which is spontaneous. But that mode is
immediately vulnerable to the constitutionalist retort: it justifies de
facto rule and use of power merely because they are there. And there is

11
Lipschutz-Fogel, in Hall-Bierstaker, p. 117.
 18

also the mode of legal pluralism as a critique of rule: the need to

liberate the particular from the arbitrary will of the general.

From this angle, constitutionalism and pluralism appear as two tendencies

in a single set of problems: the need to centralism and control on the
one hand, diversity and freedom on the other. In practice, thhe two
converge in intermediate forms: federalism, limited autonomy, hermeneutic
principles, special/general relationships. The role of special regimes in
a woreder world of the law. VCT 31(3) c. Appellate Body of WTO. Public
and prtivate reguilation. A discourse of boundaries is part of the
politics of ordered society. Dialogue.

V BEYOND REGIMES

Constitutionalism and pluralism are generalising doctrines whose

political significance is ambivalent. Each may be used to support as well
as to challenge the existing state of affairs. Together they provide a
mapping, alternative orientations to deal with, and to reduce complexity.

I began with the story of the Arbitral Tribunal in the MOX plant case
yielding in favour of the European Court of Justice, at least
temporarily. That response arose from a iind of judicial politeness, a
preference to the local (namely EU) in favour of tghe global /namely the
law of the sea). Whatever one thinks of this decision, it seems clear -
and the ILC study group has concluded as much - that there can be no
general preference of this type. There are many kinds of local and many
kinds of global. Every conflict needs a contextual appreciation, a
decision. Where should the decision come from?

One way to think about legal regimes is to see them in terms of social
engineering. This would presume there to be a relatively firm set of
interests or objectives from the perspective of which regime-hierarchies
could be established. Late 19th century German lawyers articulated the
view of international law as Koordinationsrecht the point of which was to
facilitate the way States could reach their purposes. Writing in the
aftermath of German unification in 1871, Adolf Lasson pointed out that
the international was an empty abstraction, unable to pose demands to his
nation apart those of prudence and strategy. This was later reflected in
Heinrich Triepel's dualist theory of the relations between national and
international law which for most practising lawyers meant the primacy of
 19

the national because that was the context in which their law-jobs were
situated. You could make reference to a treaty only once it was
incorporated into your domestic law. For this view, the national
perspective provided the single criterion.

I am reminded of this as I read US scholars discuss treaties and

customary laws from the perspective of "perceived national interest". Why
would a nation follow a pattern set up or a text adopted sometime in the
past? Well, because it may be in its interests to do so. But any pattern
or text gives only rebuttable presumption about the interest, to be
verified each time anew. For these neo-Wilhelminian scholars,
international regimes manifest "coincidence of interest" or "successful
coercion". "Legalization" is a policy choice and the only justified
attitude to purported regimes is "pick and choose".

Now unlike my European colleagues, I am not particularly worried about

this, not only because some of the suggested re-thinking about
international regimes is absolutely called for. Much more importantly,
however, this view has exactly the same difficulty that nationalism in
the 19th century had. Even as Lasson was writing, the vocabulary of the
nation was showing itself conflictual, indeterminate, open. The "nation"
was not an iron cage but a myth, the "national interest" not a firm datum
for resolving policy-conflict but completely embedded in social conflict
about what the "nation" meant. This was as true of the German empire in
the late 19th century as it is of American empire today: nationalism
paradoxically dependent on internationalist principles, interpreted in as
many ways as there are political contestants. The social engineering view
and the view of international law as prudential co-ordination presumes
the stability of the entities to be co-ordinated in a completely
unrealistic way.

It is this history that comes to mind when one hears the suggestion that
the emergence of multiple legal regimes should be managed by a system of
regime-co-ordination - re-inventing the Wilhelminian Koordinationsrecht
in terms of managing expert vocabularies, each sovereign in its own
realm. History suggests that this would have a surprising consequence. It
compels the internal hierarchisation of the regimes. Eighteenth century
absolutism stood on the shoulders of a co-ordinating view of the
international world. For the nation to have a policy of single interest,
it needed to have a single spot from which it was ruled. The view of
future law as a system of regime-co-ordination would ironically compel
 20

the regimes into the image of billiard-balls poised against each other in
the Hobbesian image of "gladiators", constantly ready to occupy any
territory left vacant buy the other.

But of course, regimes, like states, are no billiard-balls. A better

place to start would, therefore, not be their separatedness but their
connectedness, not their homogeneity but heterogeneity. Every regime like
every State is always already connected with everything around it. We
know this from practice. Environmental law may be best supported by
market mechanisms through introducing pollution permissions. For the
market to fulfil its promise, again, a huge amount of regulation is
needed, not merely on conditions of exchange or the terms of ownership or
banking. A market with no provision for social or environmental
conditions will fail. Human rights may be best advanced by giving up
strict human rights criteria and, for example, insisting on early
accession of Turkey in the European Union. Critical lawyers have long
rehearsed arguments about the porosity of the limit between public and
private, political and legal, the national and the international.
Extended to a world of multiple regimes and multiple modes of thought
such arguments would highlight the contingency of the limits of
individual regimes, their dependence on other regimes, and the politics
of regime-definition.

Here there is room for much ingenuity. A regime of trade may always be
redescribed as a regime for human rights protection while any human
rights regime is always also a regime for allocating resources. In the
aftermath of the submission of the report of the UN Secretary-General's
High-Level panel of threats against security, a debate commenced over the
definition of security in terms of human security, security against
poverty, terrorism, AIDS, and so on, each such definition harking back to
different interests and values, and highlighting the jurisdiction of a
different form of expertise. Which shows the elusive and open-ended
nature of regimes and the pointlessness of regime-co-ordination as a
normative idea. It is pointless precisely in the way that thinking about
international law as co-ordination between States was. States were not
the kinds of elementary units or atoms this view presupposed. Not a are
regimes of modes of legal thought like that. Their boundaries are open,
their principles contradict each other and when they are fixed, they show
themselves indeterminate. the same is true of modes of legal thinking.
Legal instrumentalism presupposes the truth of legal formalism - namely
that legal form can capture the asserted purpose in some reliable way.
 21

Historical approaches to law rely on rationalist principles for their

justification while rational principles need positivism to demonstrate
their content.

Multiple legal regimes and multiple modes of thought - yes but never
fixed, never determinable, always in motion into and away from each
other. We like to think of the present law in terms of fragmentation,
diversity, multiplicity. But how plausible is that? When legal experts
from Amnesty international or a ministry of defence meet at an
international conference, how different are they? It is the sons and
daughters of WTO representatives who take to the streets in Geneva. When
a counsel for Microsoft meets up with the UN legal office to debate on
the Global Compact, no clash of cultures takes place. Regimes are
platforms over which already powerful experts constantly extend their
influence, shifting boundaries, affirming and challenging each others'
jurisdiction. Instead of colourful multiplicity, one sees a single red
brick wall meant to control and delimit.

This is why I am not worried about multiplicity of regimes or the clash

of legal rationales. On the contrary, they are the platform for today's
politics. The real concern is the homogeneity of the cultural and
professional outlook of the participants, the pretense that the decisions
follow cognitive or technical grounds and are therefore immune to
political contestation. As a prelude to that, however, I want to suggest
that the discourse of multiplicity should itself be redescribed in
political terms, as a competition between different systems and criteria
for allocating resources between social groups. Who will win and who will
lose?

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