I want to thank Roger Cotterrell for his stimulating lecture, and thank especially Carrie Menkel-Meadow and the International Journal of Law in Context for the opportunity to participate in this important conversation. I admire Professor Cotterrell’s choice of topic; he has taken up a really hard and pressing question for many pluralist societies right now, which is how law and legal theory might make sense of the legal demands of cultural pluralism. Kwame Anthony Appiah has nicely articulated a similar version of this problem: ‘The challenge, then, is to take minds and hearts formed over the long millennia of living in local troops and equip them with ideas and institutions that will allow us to live together as the global tribe we have become’ (Appiah, 2006, p. xiii). Even if you do not share Appiah’s exuberant cosmopolitanism, the issue remains that conflict between human groups based on small differences often unrecognisable to outsiders is probably the norm in human history, and each society (however defined) continues to negotiate that problem of boundaries, membership and codes of conduct, of who can be included and whose practices can and cannot be tolerated.

First, many thanks to Carrie Menkel-Meadow, the editors of The International Journal of Law In Context and the sponsors of this series for facilitating this lecture, and for inviting my participation. And a special thankyou to Professor Roger Cotterrell for sharing with us such a generous, humanistic and hopeful account of law’s moral possibilities, when faced with multicultural conflict within a society governed by a liberal rule of law.1 I very much appreciate the opportunity to reflect on this set of claims, although I feel somewhat an outsider to the task, as I’ll explain below. I understand Professor Cotterrell as arguing, first, that traditional Anglo-American jurisprudence has not sufficiently theorised the role of culture and cultures,2 second, that multiculturalism renders inadequate, for different reasons, both Weberian and non-positivist or non-instrumental accounts of law’s liberal aspirations,3 and third, that one possible way for law to contribute constructively to a moral and peaceful multicultural society would be to conceive of itself not just as an instrument for the fulfilment of private and conflicting individual purposes, not just as the target of passions from a more-or-less unified culture, but rather, as a means of respectful communication between cultures,4 albeit one that imposes individualist and liberal side-constraints on the conversation so fostered: to wit, that the law itself, and its parts, must be rigorously respectful of the autonomy and decency of all individuals, and must demand as much from citizens.5

I am very grateful to Naomi Mezey, John Mikhail and Robin West for their thought-provoking comments on my paper. Since each of the comments has a different orientation, this reply will address them in turn, but picking up especially one theme – the place (or absence) of power in my picture of law’s engagement with multiculturalism – that recurs in all of them.

During the 2008 US Presidential election, voters in California, as well as choosing a president, were asked to withdraw the right of same-sex couples to marry, the Californian Supreme Court having, six months previously, conferred that right by judicial decision.1 ‘Proposition 8’ aimed to restore the definition of marriage to its historical heterosexual limitations, and it passed, by a fairly narrow margin. The feature most remarkable to an outsider during the Proposition 8 campaign was the stunningly apocalyptical terms in which the debate was conducted, on both sides of the argument. The same-sex marriage debate is in the United States of America conducted in such venomous terms as to leave a European observer quite breathless. Nancy Polikoff’s latest book brings some calm to the discussion. It is a measured and thoughtful contribution to the debate and, though she does not directly address the question of why it is so much more contentious in the US than in other Western jurisdictions, her analysis does shed much light on that puzzling question. There are three main explanations that spring out of this engaging book.

Deryck Beyleveld and Roger Brownsword’s new book provides an ambitious and thorough account of the role of consent in the law and, also, as a possible basis for law’s authority. Given only a slight familiarity with the previous work of its authors, the volume’s thoroughness and ambition will come as no surprise. The volume does, however, contain some surprises, two of which are particularly worth noting. One surprise, at least to those of us with our noses to the grindstone of a narrow area of legal doctrine, is the near ubiquity of consent in various areas of legal doctrine. The book serves a useful role just by reminding us of this. A second surprise is the complexity of the notion of consent itself, for Beyleveld and Brownsword are intent on determining the normative power of the notion, including the conditions under which that power can be realised, who can realise it and why it should be thought normatively significant. This, too, is a valuable contribution to our thinking about a fundamental feature of the juristic landscape.