13.1 Introduction

In 1964, the French social anthropologist and exponent of structuralism, Claude Lévi-Strauss, published volume one of his celebrated series Mythologiques: Le Cru et le Cuit, translated into English in 1969 as The Raw and the Cooked. In the volume’s introductory chapter, Lévi-Strauss offered an explanation of the group nature of the Amerindian myths analysed in the volume. With his arresting image of Indian America before the ages of European conquest as ‘a Middle Ages which was missing its Rome’, Lévi-Strauss invoked a – seemingly eternal – idea of ‘Rome’ as a source of order and normativity. For Lévi-Strauss, the structure of Amerindian mythologies differed from those of medieval Europe because there was no ‘Rome’ – neither empire nor Church – to act as a centralizing, structuring, unifying force. Nonetheless, as Lévi-Strauss’ Mythologiques set out to prove, there was structure to the seemingly ‘confused mass’ of Amerindian myth.Footnote ² I begin with Lévi-Strauss and his vision of ‘a Middle Ages which was missing its Rome’ in order to problematize the idea of centralized authority itself. More specifically, this chapter challenges the seemingly natural idea, typified here by Lévi-Strauss, that the presence of a Rome – or a Brussels, or a United Nations, or even a UNIDROIT – implies the development of a centralized, hierarchical model through which various, heteronomous, normative orders politely interact.

‘Rome’ here performs as shorthand for the deceptively complex idea that law and governance should be understood primarily in the context of imperium: the power to command. As Karen Alter states: ‘Most people presume that law is only meaningful when backed by a central enforcer.’Footnote ³ Hence for much of the twentieth century, in the absence of a ‘world state’, international relations could be conceptualized as operating outside the domain of law. Since 1989 the number of international courts has more than quadrupled in number from six to over twenty-four – resulting in the collective issuing of over 37,000 binding legal rulings in individual contentious cases.Footnote ⁴ Yet even this intensified judicialization of the international arena still tends to be framed by a persistent ‘image of law beyond the nation state as a weak ordering and regulatory system, rather than a constitutive element in the ongoing tumble of transnational life’.Footnote ⁵ The field of private international law – ‘the legal discipline that determines in which cases a court must apply a foreign law’ – also rests on a paradigm of Westphalian state governance.Footnote ⁶ Private international law ‘does not lay out substantive rules for such situations, but merely resolves conflicts between the legal orders themselves’, relying on relevant domestic choice-of-law principles and rules in order to resolve legal disputes with a foreign element.Footnote ⁷ As Neil Walker notes, choice-of-law rules ‘and the interpretative aids of transnational law do not “stand above” the domestic systems in which they are applied. Rather, they are formulated or interpreted each in the context of their own system – in deference to and under the self-validating terms prescribed by each domestic legal order’s sovereign authority.’Footnote ⁸ Notwithstanding the ‘equality’ between different domestic legal orders, the system of private international law prioritizes national sovereignty and is grounded within a hierarchical – in a Kelsenian sense – approach to international governance.

In contrast, the ‘postnational’ approach, as defined by Nico Krisch in his 2010 Beyond Constitutionalism: The Pluralist Structure of Postnational Law and further developed by the ‘Entangled Legalities’ project underlying this volume, argues that ‘national’ and ‘international’ law are interwoven to such an extent within the supranational legal order that norms and principles from both spheres interact heterarchically: ‘operating side-by-side without the presumptive authority of one over the other’.Footnote ⁹ Like Lévi-Strauss’ pre-conquest Amerindian myths, there is no centre or hierarchy (no ‘Rome’) to structure postnational law. Nonetheless, again like Lévi-Strauss’ account of Amerindian myth-making, there is a structure at work: ‘the nation-state itself shares ultimate authority with multiple regional and international legal orders with which it interacts without a common normative framework – hence a post-national law within a pluralist structure’.Footnote ¹⁰ Instead of mapping the contours of an emerging global constitutional framework in which overarching principles govern relations between different normative orders, this volume’s project seeks to reimagine the global legal order ‘through the paradigm of entangled legalities’:

We shall return to the idea of interface norms structuring ‘fluid and shifting relations between different bodies of norms’ in greater detail in Section 13.2. For the moment, we should simply note that the ‘postnational space seems to demand new, different, answers to the question of how to structure governance’.Footnote ¹²

Rafael Domingo has recently argued, in the context of ‘global constitutionalism’, that if the future of the supranational legal order is postsovereigntist, postnationalist and postpositivist, ‘Roman law was, so to speak, pre all of them: presovereigntist, prenationalist, and prepositivist’.Footnote ¹³ Most legal historians would agree, however, that there was something akin to ‘international law’ in Greco-Roman antiquity (and in earlier antiquity too): a rule of law that governed relations between states, alongside the use of brute force.Footnote ¹⁴ Historians of Greco-Roman ‘international law’ tend to focus predominately on the laws of war and diplomacy, including interstate peace treaties. Beyond the political and economic ordering of interstate relations, guaranteed by mutual oath-taking and divine invocation, Greco-Roman peace treaties also included clauses providing for the resolution of on-the-ground disputes that might otherwise threaten the newly agreed order. For example, the treaty concluded in 562 CE between the (Eastern) Roman Emperor Justinian I and the Sasanian King of Kings Xusro I set out – in both Greek and Persian languages – the terms of a fifty-year peace agreed between Rome and Sasanian Iran.Footnote ¹⁵ This 562 CE treaty contains two articles that could be compared loosely with modern ‘private international law’ provisions. Article 7 specifies that individuals who ‘have suffered some hurt at the hands of subjects of the other state’ should settle the dispute according to law: ‘either those who have suffered harm themselves, or their representatives, shall meet on the frontier before the officials of both states, and in this manner the aggressor shall make amends for the damage’.Footnote ¹⁶ Article 11, on the other hand, specifies the procedure to be followed in the case of intercity disputes that fall outside the ‘rules of war’:

There follow various provisions outlining what should happen if the judges from the frontier zone are unable to resolve a dispute, culminating in a referral to the relevant ruler and a one-year delay before the peace treaty is held to have been broken. The fact that the provisions of the 562 CE treaty itself were negotiated and concluded on the frontier between the Roman and Sasanian Empires, at the border city of Dara, is a further reminder of what the plural constitutionalist theorist Neil Walker terms the ‘centrality of the margins’.Footnote ¹⁸ Articles 7 and 11 of the 562 CE treatise, moreover, provide concrete examples of how action at the margins can be seen to structure an overall order. We shall return to this idea of the ‘centrality of the margins’ in Sections 13.2 and 13.3.

Whether there is anything in Classical or Postclassical Roman legal sources that could be mapped accurately onto the modern concept of ‘private international law’ is doubtful at best.Footnote ¹⁹ In fact, as we shall see in Section 13.3, the coordination of legal sources within the Roman Empire has more in common with the heterarchical approach of ‘postnational law’ than with the state sovereignty model of private international law. As Ulrike Babusiaux argues in a 2020 article comparing the legal ordering of imperial Rome with the legal ordering of the European Union, the question of ‘how to coordinate different legal sources without abstract hierarchy’ is an ancient one.Footnote ²⁰ During the late Roman Republic, practical and concrete jurisdictional questions arose in the context of Roman imperial expansion and the creation of the provincial system.Footnote ²¹ Contact between Roman citizens and ‘foreigners’ (peregrini, free citizens of any political community besides the Roman) was unavoidable, especially in relation to commerce and business dealings more generally.Footnote ²² Roman magistrates, legal experts (iurisperiti), the emperors and their officials were thus well aware of a world of private legal transactions involving ‘non-citizens’ of various different types and recognized the need to regulate those transactions from within the Roman legal system. At Rome, from at least the time of the first Emperor Augustus, the praetor peregrinus handled litigation between ‘foreigners’ and also cases between ‘foreigners’ and Roman citizens.Footnote ²³ The activity of the praetor peregrinus (and the praetor urbanus) at Rome may, to some extent, explain the origins of the Roman ius gentium: ‘those legal habits which were accepted by the Roman law as applying to, and being used by, all the people they met, whether Roman citizens or not’.Footnote ²⁴ The elaboration of this concept enabled Roman jurists to define certain private law interactions between peregrini, ‘Latins’ (who had some of the rights and privileges of Roman citizenship via Roman grants of the ius Latii) and Roman citizens, as falling under Roman jurisdiction. For example, peregrini could acquire ownership through ‘natural’ modes of acquisition (traditio, occupatio, accessio) and certain contracts of buying, selling and letting were also understood to be part of the ius gentium; slavery was iure gentium, all peoples had it although there were aspects of the (Roman) law of slavery that were peculiar to the Roman ius civile alone; and in certain Roman law actions a legal fiction even enabled foreigners to sue or be sued ‘as if’ they were Roman citizens.Footnote ²⁵ The important point to note here is that while Roman jurists and magistrates worked within a conceptual framework that acknowledged different ‘layers of law’ (Rechtsschichten), including the ius gentium, their start and end point was the resolution of cases – hypothetical and real – in accordance with the citizen-law of Rome itself.Footnote ²⁶ The opening of Gaius’ Institutes, a mid-second-century CE introduction to Roman law, famously refers to ‘all peoples who are governed by laws and customs’ as having their own bodies of citizen-law – yet there are no extended discussions of clashes between national laws, nor ‘cases [in which] a court must apply a foreign law’, in Classical Roman juristic texts.Footnote ²⁷ There is, however, an explicit discourse in both extra-legal and legal Roman texts acknowledging ‘overlapping spheres’ and entangled norms within Roman private law.Footnote ²⁸

Alongside the ius gentium (discussed by some Classical Roman jurists in relation to ‘natural law’), Babusiaux identifies three layers of Roman private law: the ius civile narrowly understood (the law of the citizen-body of Rome); the ius praetorium or ius honorarium (the law of the urban praetor – the praetor with jurisdiction between Roman citizens); and ‘imperial law’ (law enacted by or on behalf of the Roman emperors).Footnote ²⁹ Through a series of detailed case studies, Babusiaux convincingly demonstrates how the application of these different layers of law to specific legal questions could seemingly create clashes, requiring conflicting legal outcomes. The Roman jurist’s solution was not to rank the layers of law within an abstract hierarchy of precedence, but rather to reason out their application case by case:

The structuring of the different layers of (Roman) law was thus case-specific and dependent on the specialized reasoning techniques of the jurists themselves. In one sense, then, these Roman layers of law can be said to have operated heterarchically: side by side without the presumptive authority of one over the other. Yet the crucial point here is that it was the Roman jurists, the expert legal actors, who provided the overall structure by reasoning out potential overlaps, entanglements and clashes casuistically.Footnote ³¹

As I argue in Section 13.2, ‘postnational’ law’s focus on legal norms and principles is itself influenced by a modern (Western) tradition: a tradition that links normative-conceptual approaches to ‘defining what law is’ with territorial approaches to defining nation state sovereignty.Footnote ³² Rather than locating multiplicity and plurality in different bodies of overlapping and entangled norms and then positing ‘a set of new types of norms at the interfaces between different legal sub-orders’, Babusiaux’s analysis suggests that we should look to legal actors – in this case the Roman jurists – as structuring agents in their own right. As I suggest in Section 13.3 through a case study of the record of a protracted sixth-century CE dispute, this focus on legal actors as structuring agents is not simply a question of how different individuals and groups apply legal norms and principles in different times, places and contexts. Rather than adopting a modern ‘law in action’ or ‘law in practice’ perspective, Section 13.3 aims to develop an approach to norms and legal actors that is more akin to Lévi-Strauss’ disentanglements of Amerindian myths: ‘We thus do not pretend to show how men think in myths, but how myths are thought in men, and without their knowledge.’Footnote ³³

13.2 Beyond ‘Norms’ and the Nation State

From the later twentieth century onwards, jurisprudential attempts to define ‘what law is’ have become increasingly concerned with the normative-conceptual boundaries of legal ‘systems’, as opposed to the territorial boundaries of sovereign (nation) states.Footnote ³⁵ As Michael Guidice stated in his ‘think piece’ for the Geneva 2019 meeting, with reference to H. L. A. Hart, Hans Kelsen and Joseph Raz: ‘The concept of a legal system makes it possible to conceive of the membership of all norms within some domain.’ Defining a legal system primarily in terms of the norms that it ‘contains’, in turn, enables the idea of ‘norm interaction’ across all levels of ordering. Defining the boundaries of legal systems in terms of norms and rules thus opens up space to identify pluralist legal orderings, operating within and beyond the ‘conventional, and conventionally separate, structures of constitutional law (considered as the law of the Keynesian-Westphalian state) and international law (considered as the law between Keynesian-Westphalian states)’.Footnote ³⁶ According to Nico Krisch, ‘The resulting “postnational law” is thus a frame comprised of different orders and their norms.’Footnote ³⁷ Norms which, as we saw in Section 13.1, exist in heterarchical – rather than hierarchical – relation to each other. Hence one of the central claims of Krisch’s ‘postnational law’ paradigm: ‘that global law fares better if it embraces plurality, rather than trying to tame it in an institutional model’.Footnote ³⁸

To a historian whose research interests lie mainly within the presovereigntist, prenationalist and prepositivist world, the centrality of norms within ‘postnational law’ and the ‘Entangled Legalities’ project seems striking. Not only is the ‘frame’ of postnational law made up of orders which in turn are made up of norms, but the mechanism through which norm interaction is seen to take place is defined as a set of new types of norms, operating at the interfaces between different legal suborders. This set of new types of norms includes ‘reception norms’: ‘the typical form through which a legal system deals with norms from the outside; they reproduce the inside/outside distinction and define the ways in which outside norms enter a given body of norms’ (also referred to as between systems/conflict-of-law norms); ‘overarching norms’ which ‘regulate relations centrally and with binding character for the different bodies of norms involved’ (also referred to as within system/intra-systemic norms); and ‘connecting norms’ and ‘straddling pactices’, the ‘norms and practices that straddle different bodies of norms without being seen to belong to either, thus blurring the boundaries between them’ (‘straddling boundaries’).Footnote ³⁹ Norms have a ‘travelling content’ through which they perform their operations, becoming entangled within a broader discursive context:

The explicit focus here is on postnational governance structures and dispute resolution; nonetheless, using norms (and rules) as the primary tools for identifying and framing legal systems is very much part of a modern, ‘Keynesian-Westphalian’, state-sovereigntist, framework. As Roth-Isigkeit states: ‘the legitimacy of norm creation seems one of the most important achievements of the national state’.Footnote ⁴¹ What might appear (to ‘us’) as natural and timeless features of ‘strong’ legal norms and rules – their binding quality, their normativity, their legitimacy – have in fact been created through modern processes of nation state formation. With its main focus on legal norms – even entangled ones – the ‘Entangled Legalities’ project does not move us much beyond the (national) state. The fact that the project also includes some analysis of ‘weaker’ (‘informal, unenforced’) entangled norms, however, does potentially open up the field to much broader, legal pluralist, perspectives.

The idea that ‘strong’ legal norms have a jurisdictional aspect is central to both the state-sovereigntist and the postnational-pluralist ‘normativisation’ (Durchnormierung) of law:

The modern (Western) idea that every legal rule carries with it a ‘ticket’ to institutionalized enforcement links back to the presumption, discussed in Section 13.1, that law is only meaningful when backed by state power or – to phrase it more loosely – when structured by a Lévi-Straussian ‘Rome’.

‘Law in action’ and ‘law in practice’ approaches tend to rely on this modern, Western, idea of legal norms and rules carrying a jurisprudential aspect. It is inherent, for example, in Neil MacCormick’s call for a ‘user-orientated understanding of norms’ and also in the wider context of his definition of law itself as an ‘institutional normative order’.Footnote ⁴³ It is implied in Lon Fuller’s ‘interaction theory of law’ which ascribes an active role to individuals within the ‘legal system’ through an analysis of their ‘interactional expectancies’ when engaging with ‘enacted law’ (i.e. law that is accompanied by an explicit ticket to institutionalized enforcement).Footnote ⁴⁴ In terms of the international legal sphere, the ‘Transnational Legal Process model’ relies on norms having a jurisdictional aspect, enabling it to move beyond a formalist concept of rules, in order to stress the role of ‘internalized obedience’ in developing ‘sets of normative practices’.Footnote ⁴⁵ Finally, the ‘Entangled Legalities’ project’s account of ‘norm entanglement’ – I would suggest – also relies on the idea of ‘strong’ legal norms from different origins carrying different jurisdictional ‘tickets’. It is precisely this jurisdictional aspect which prevents individual norms from becoming integrated – rather than entangled – through the (repeated, dynamic) ‘social interplay of actors’:

Nonetheless, the claim that norm entanglement is ‘a common state of affairs in the law’ downplays the fact that the ‘normativisation’ of law is itself the product of a Keynesian-Westphalian, state-sovereigntist, ‘political’ framework.Footnote ⁴⁶ Classical Roman jurists did not understand law (or legal order) as a system of binding, imperative norms. As the Roman legal historian José Luis Alonso Rodriguez states: ‘Legal positivism not only means identifying law with legislation tout court […] It means also the thorough normativisation (“Durchnormierung”) of the law, the construction of the entire legal system as a system of imperative, binding norms. Nothing can be more remote from the Roman legal experience in the late Republic and early Empire.’Footnote ⁴⁷

We saw in Section 13.1 that relations between the different layers of Roman law were dynamic and heterarchical: they depended on the skill of Roman jurists to reason out potential overlaps, entanglements and clashes on a case-by-case basis. Alonso Rodriguez continues: ‘Legal Positivism […] stems from the normative monopoly of the sovereign and the subjection of the jurisdiction to the law, as theorized in modern political thinking from Hobbes onwards. Such normative monopoly and jurisdictional subjection are alien to the Roman political theory and practice of the late Republic and early Empire.’Footnote ⁴⁸ In other words, Roman legal norms, rules and principles did not carry with them an automatic jurisprudential aspect: ‘a ticket to some person, agency, or institution’. Roman jurisdiction was not subjected to the law, but was accorded to specific individuals and groups. These individuals and groups ranged from the formal iurisdictio cum imperio of Roman magistrates and provincial governors, to the legal authority granted to arbitrators by contractual Roman arbitration agreements, to the auctoritas exercised by jurists on account of their technical expertise, to the authority of a Christian bishop, a freelancing ‘holy man’, an Arab tribal leader, or any other local ‘big man’, recognized by two parties jointly seeking a (negotiated, mediated or adjudicated) resolution to a dispute.

Legal norms, then, did not define a Roman legal system any more than they defined a Late Antique Talmudic or early Christian legal order. My argument in Section 13.3 is not that legal norms, rules and principles were irrelevant to entangled legalities in Late Antiquity. Rather, I am suggesting that if we place the emphasis on Roman legal norms, we risk importing a modern jurisprudential aspect to them; and this would be at the expense of neglecting the plurality of entangled legalities that operated, in practice, through concrete appeals to multiple, different, types of power. Section 13.3 thus emphasizes the construction of legalities – plural – on the ground and, more specifically, the juris(dictional)-generative practices revealed in one sixth-century CE document: P. Petra IV.39, a report of proceedings before arbitrators from the Eastern (Byzantine) Roman Empire.Footnote ⁴⁹

13.3 Entangled Legalities: Beyond the (Byzantine) State

There is a history of Late Antique entangled legalities and juris(dictional)-generative practices yet to be written in which what went on in late Roman provinces is not simply labelled ‘provincial law’ or ‘provincial practice’ and seen to exist in a hierarchical relationship with laws and practices laid down by the imperial centre, but is instead conceptualized as a kind of heterarchical ordering in its own right. Most legal historians working today on the early Roman Empire (before 212 CE) would accept that its legal order was pluralistic: that there were multiple normative orders in operation on the ground, some of which were permitted, even encouraged, by the Roman state and some of which operated beyond it.Footnote ⁵¹ Whether this kind of legal pluralism persisted much beyond 212 CE – the date of the Emperor Caracalla’s grant of Roman citizenship to almost all (free) inhabitants of the Roman Empire – is more fiercely contested.Footnote ⁵² For our purposes, however, the interesting question is not whether legal pluralism existed within the Roman Empire between the fourth and early seventh centuries – it did – but rather what kinds of legal plurality and hybridity we are talking about.Footnote ⁵³ There is no reference in P. Petra IV.39 to formal Roman court proceedings or imperial bureaucratic legal officials.Footnote ⁵⁴ Instead, the legal actors mentioned in the document seem to have understood justice-seeking as an interconnected web of possibilities – making use of practical, localized and provisional (at least when viewed from beyond the relevant immediate time frame) – accommodations. As we shall see in the case of the multiple dispute settlements recorded in P. Petra IV.39, Late Antique legal entanglements could stretch across jurisdictional, religious and ethnic boundaries. Through an analysis of P. Petra IV.39 we thus move from pluralism ‘as a way an observer might see things from without – to pluralities: to seeing the world as experienced by those who inhabited it’.Footnote ⁵⁵

Since the 1950s, a wealth of new sixth- and early seventh-century documentary evidence has opened up the field of Late Antique juristic papyrology – the study of law through mainly documentary evidence recorded on papyri – beyond the large mass of texts recovered from Egypt.Footnote ⁵⁶ The American Center of Oriental Research in Amman, Jordan, has recently coordinated the publication of a remarkable five-volume set of papyri from sixth-century Petra, the remotely located metropolis of the Roman border province Palaestina Tertia.Footnote ⁵⁷ The papyri were found in December 1993, as part of ongoing excavations of the Byzantine Church of the Virgin Mary in Petra led by the American Center of Oriental Research. Two teams of papyrologists – an American team from Michigan University and a Finnish team from Helsinki – worked with around 140 carbonized rolls, reconstructing the private papers of a certain Theodoros, son of Obodianos (born 514 CE and died 591 CE), a property owner, deacon and later archdeacon of the Christian Church of the Virgin Mary in Petra (the location where the papyrus rolls were found).Footnote ⁵⁸ Taken as a whole, the Petra archive provides evidence for the persistence of Roman forms and structures in the city of Petra and its surrounding localities: there was a continued Roman military presence and the centralized land-tax system of the Byzantine Empire was still being implemented up to at least the period of the Arab conquests (c.634–8 CE).Footnote ⁵⁹ Yet when read together with Late Antique papyri from Egypt, in addition to other papyri from the Near East, the Petra archive does not reveal an Eastern Provincial law: ‘a hybrid, indigenous law of the Near East’.Footnote ⁶⁰ Instead, we see a series of concrete situations in which individuals and groups around and beyond the Late Antique eastern Mediterranean – Syria, Palestine, the Arabian Peninsula and Egypt – made use of numerous, entangled, legal practices, forms of argument and juris(dictional)-generative situations in order to get things done.

P. Petra IV.39 is a complex and incomplete text, reconstructed from around 3,000 fragments of papyri by its editor Maarit Kaimio and others. The document is a report of proceedings before arbitrators (dikastai), probably drawn up on 8 August 574 CE by an official notary from the Kastron Zadakathon (Sadaqa), a garrisoned, fortified settlement 20 km south of Petra on the margins of the Eastern Roman Empire. The reconstituted papyrus’ extant length is a remarkable c.6.2–6.5 metres, with 523 lines of text surviving. Nine different hands can be distinguished in the document, with one clear cursive hand indicating a trained scribe.Footnote ⁶¹ The document itself is written in Greek, but its contents reveal a multilingual environment. At certain points the papyrus refers to two languages being used simultaneously: Greek and ‘Syriac’ (probably an Aramaic dialect).Footnote ⁶² Both of the parties involved in the 574 CE dispute – Theodoros, son of Obodianos, and Stephanos, son of Leontius – are clergymen; as is Heiros, son of Thomallos, who drafted the arbitration agreement’s stipulation of penalty, and one of the arbitrators, Theodoros, son of Alpheios who is identified in the document as an archdeacon. The other arbitrator, Flavius Thomas, son of Boethos, was a senior officer in the local military unit garrisoned at Sadaqa.Footnote ⁶³ As discussed in more detail later in this section, the record of the 574 CE arbitration settlement refers to two previously negotiated settlements: one probably from the 530s, decided by an Arab tribal leader and a further settlement from sometime before 574 CE that had been mediated by a Christian cleric from a neighbouring rural area. In addition to arbitration and mediation proceedings, P. Petra IV.39 also refers to other forms of justice-seeking, which include trips to the ‘sacred shrine of the holy and glorious martyr Kerykos’ (in Sadaqa) in order to swear oaths of innocence on the Christian Holy Scriptures.Footnote ⁶⁴

The report of proceedings given in P. Petra IV.39 touches upon numerous points of dispute, all related to the fact that Theodoros son of Obodianos and Stephanos son of Leontius owned neighbouring properties in Sadaqa, as had their fathers before them. Theodoros and his father, however, seem to have been absentee property owners; at line 103 in the text Theodoros responds indignantly to an accusation that he does not ‘care for local matters’. Stephanos, on the other hand, seems to have taken advantage of Theodoros’ absence from Sadaqa in order to build new physical structures and make alterations to the flow of the water supply without Theodoros’ approval.Footnote ⁶⁵ This led to disputes over Stephanos’ and Theodoros’ rights to the water that drained from a roof-spout, which had originally been constructed by Theodoros and was the subject of an earlier dispute mediated by the ‘country bishop’ Sergios.Footnote ⁶⁶ Who owned which parts of the adjacent properties was also at issue, including rights of access across a central courtyard and rights of ownership relating to a refuse pit and an outbuilding.Footnote ⁶⁷ Theodoros claimed that the outbuilding was his by right of inheritance, producing a written deed of sale made for his father seventy years ago.Footnote ⁶⁸ He also seems to claim that he had been sold the outbuilding by two other individuals (Kassisaios and Gregoria), but could not produce any supporting written documents. Stephanos, meanwhile, counter-claimed that his father had bought the outbuilding and surrounding courtyard fifty-three years ago, apparently from Theodoros’ father. Stephanos produced two deeds of sale, but Theodoros responded that the outbuilding and surrounding land had not been included in the transaction. Added to this complex situation, P. Petra IV.39 also includes accusations of encroachment and theft of building materials – timber, blocks of stone and doors – by local soldiers, possibly under the command of one of the 574 CE arbitrators: Flavius Thomas.Footnote ⁶⁹ In addition, the document records a further, rather murky, claim for two solidi (gold coins) related to an earlier dispute between the families over a vineyard.Footnote ⁷⁰ Perhaps unsurprisingly, the hostilities between the two families spilled out into the local community, with Stephanos accusing Theodoros of deliberately stirring things up with the neighbours – who, we are told, made many ‘unwritten accusations’.Footnote ⁷¹ P. Petra IV.39 thus records a longstanding series of disputes between two local families, spanning several decades. There is obviously a complex backstory to the 574 CE arbitration. As a 546/7 CE papyrus from the Egyptian city of Antinoe put it, ‘many words have been said and many moves have been made’ before the parties brought their case before the arbitrators.Footnote ⁷²

Arbitration (and mediation), in contrast to judicial settlement by a standing tribunal, is designed by the parties to the dispute. The basic modern ‘principle of party autonomy’ – that the parties agree which issue(s) to submit to arbitration, that is, the issues to be decided upon; the choice of arbitrator(s); and the ‘applicable law’, that is, the law applicable to the dispute, including soft law and ‘non-binding’ law – can also be seen in operation in Roman arbitration proceedings. Similarly, the modern distinction between ‘ad hoc arbitration’ and ‘institutional arbitration’ (where the parties rely on the procedural rules of an arbitral institution determined by the relevant institution) can also be seen in Late Antique contexts. Arbitrations and other negotiation settlements before Late Antique Christian bishops and clerics, for example, developed institutionally specific norms and practices. Records of proceedings held before arbitrators and formal arbitration agreements survive on papyri from both the Late Antique Near East and the West. These include an Egyptian record of a dispute settled by arbitration in 647 CE and recorded in Coptic, which the editor of P. Petra IV.39, Maarit Kaimio, notes as the closest parallel to our 574 CE text. P. Petra IV.39, however, is unique in that it refers to the submission of written pleas and documents at an early stage of the proceedings, but records the parties’ oral pleas before the arbitrators in direct speech: ‘the speech flows in personal style, often becoming agitated and even insulting’.Footnote ⁷³ In other words, aside from the opening and concluding formalities of the arbitration procedure and the stipulation of penalty, the language used by the parties is not formulaic. What we see recorded in P. Petra IV.39 is a localized culture of argumentation.

Chronologically, the earliest negotiated settlement mentioned in P. Petra IV.39 relates to the vineyard and the claim for two solidi. This dispute, the papyrus states, occurred sometime in the past – Kaimio suggests the late 520s or 530s – between Theodoros, son of Obodianos and Leontius, the father of Stephanos. It was resolved before a mediator referred to in the document as ‘Abou Cherebos’. This is probably Abu Karib ibn Jabala, part of the Jafnid dynasty that acted as power brokers between Rome and the Bedouin.Footnote ⁷⁴ Abu Karib ibn Jabala was granted the Phylarcate of Palestine (including southern Jordan and Petra) by the Roman Emperor Justinian sometime in the 530s.Footnote ⁷⁵ Thus we have a relatively minor dispute over a vineyard, involving two landowners of middling means, mediated by an Arab tribal leader with a network of contacts that stretched all the way from (present-day) Jordan to the Emperor in Constantinople.Footnote ⁷⁶ In choosing Abu Karib as the mediator of their dispute, Theodoros and Leontius deliberately exploited local and imperial networks. The second negotiated settlement mentioned in P. Petra IV.39 took place sometime before 574 and was concluded between Theodoros, son of Obodianos, and the individual whom he claimed to have bought the disputed outbuilding from: a certain Kassisaios. The memorandum of this agreement, included in the documents submitted to the 574 CE arbitrators, states that it was made through ‘Sergios, priest and “country-bishop” (chorepiscopos)’.Footnote ⁷⁷ Here we have the parties appealing to a Christian cleric from a neighbouring rural area, perhaps either exploiting a personal network or, conversely, attempting to remove the dispute from its immediate, urban, context. We also see the use of a Christian cleric as arbitrator in the 574 CE settlement itself, alongside a high-ranking military officer who may have been directly implicated in the circumstances of the case. P. Petra IV.39 thus presents us with multiple justice-seeking attempts, before multiple individuals of different types. The crucial point to note here is that each of the different venues for dispute resolution were put into relation with each other by the parties to the disputes themselves. The interlinkage here is literally created through the parties’ own juris(dictional)-generative practices.

We turn, finally, to the legal norms and principles that the parties rely upon in their justice-seeking activities. In common with other papyri in the Petra and Nessana archives, the protocol of P. Petra IV.39 seems to make use of procedural terms and concepts derived from Roman law: ‘Instances of such terms in the text demonstrate beyond doubt that the parties and arbitrators had some, considerable, specific legal knowledge.’Footnote ⁷⁸ Marzena Wojtczak’s careful and cautious reconstruction of the substantive Roman rules and concepts that can be pieced together from P. Petra IV.39 also suggests the use of legal norms and concepts derived from Roman law, while at the same time highlighting the specificity of localized practices.Footnote ⁷⁹ According to Wojtczak, P. Petra IV.39 ‘gives an impression that we are actually dealing with a sequence of debts and securities between the two families’, involving ‘a sequence of fiduciary or fictitious sales’ with multiple ownership changes over a relatively short period of time (what a modern lawyer might refer to as a situation of relational contracting).Footnote ⁸⁰ As Wojtczak’s article concludes: ‘It should be considered that ordinary people, not acquainted with dogmatic legal patterns, sought solutions which would appear to protect their rights in [the] best possible manner. Transfer of ownership treated as a security for credit seems to be in accord with this idea.’Footnote ⁸¹

The use of a technical Roman legal register in P. Petra IV.39 thus needs to be understood within the context of local relations and localized practices. Evidence for these localized practices can be difficult to pinpoint in Late Antique legal and documentary source material, nonetheless, as Wojtczak’s example of the creative, ‘localized’ use of multiple fiduciary or fictitious sales suggests, Roman legal concepts and practices were put to work differently, by different networks of individuals, families and groups, operating within different localities around the empire. Moreover, the fact that this creative use of Roman legal norms in P. Petra IV.39 is apparent across a succession of settlements, decided in turn by Christian clerics, a Roman military official and an Arab tribal leader, underscores the fact that the Roman legal norms themselves were considered ‘portable’. Once again, there may be modern parallels to be teased out here in terms of exploring the relationship between entangled legalities on the ground and ‘strategic legal argumentation’. For example, Adam Bower stresses the role played by ‘strategic legal argumentation’ in contemporary multilateral settings: ‘First, in multilateral settings actors will tend to invoke justifications based in legal principles, norms, and rules – potentially in conjunction with coercive efforts – in pursuing policy goals. This strategy is preferable even when the actor making a claim does not fully endorse the standards it employs.’Footnote ⁸² Strategic legal argumentation, I would suggest, is at least as important as (‘travelling’) legal norms when it comes to the construction of entangled legalities past and present.

While it may be tempting to interpret P. Petra IV.39, and the Petra archive more generally, as evidence for the persistence of Roman forms and structures (the Roman military, the Roman land ownership and taxation system, Roman legal norms and principles), this would risk sidelining the situated, entangled web of practices that I discuss in this chapter. The fact that Roman legal norms underpin some of the parties’ direct speech as recorded in P. Petra IV.39 is an important point, but Roman law should not be understood as ‘the’ centralizing, organizing, principle at work across the life of these disputes. What P. Petra IV.39 suggests instead is a complex picture of connected localisms: Roman military networks are enmeshed within civilian, urban, life; Arab tribal leaders mediate property disputes between Christian clerics; and urban clerical networks intersect with wider rural connections. To reduce this connectivity to a static (Roman) provincial law would in fact sideline the extent to which Roman legal norms were put to work, by the parties themselves, in concrete situations and contexts. P. Petra IV.39 shows us sixth-century legal actors operating at the margins of empire, mobilizing multiple networks and regimes – local, regional, trans-regional, imperial – and in the process creating connected, but crucially not integrated, legal orderings of their own.

13.4 Conclusion

With our analysis of the presovereigntist, prenationalist and prepositivist world of P. Petra IV.39 we have moved far beyond a modern, state-sovereigntist, court-centric framework. P. Petra IV.39, in contrast, underscores the central role of legal actors in creating localized and entangled legalities on the ground; entangled legalities within which arguments from – portable – Roman legal norms and principles play a significant, but not determinate, role. One of the central questions posed by the ‘Entangled Legalities’ project is how to reimagine the global legal order through the paradigm of entangled legalities. I would argue that one answer involves reframing the analysis so that it shifts from a predominate concern with legal norms towards a ‘user theory of jurisdiction’: an analysis of the ways in which different legal actors shape themselves to the jurisdictional claims made by state, non-state and extra-state authorities and, in turn, work to shape the concept of jurisdiction itself. As Nico Krisch states: ‘the systemic, hierarchical and exclusive [image of law] may well constitute the exception rather than the rule’.Footnote ⁸³

The concept of entangled legality faces an uphill battle for respectability, as powerful human forces weigh against it from the first mention of its terms. We are all familiar with the reductionist impulse in legal theory, which seeks to reduce apparent novelty to ready explanation within extant concepts and categories. Assertions of legal entanglement, on this view, are mistaken ascriptions of something else – perhaps conflicts between sovereign states, or unsettled internal constitutional matters as federal and state authorities contest the boundaries between them. And even if the ontological credibility of entangled legality might be established, a familiar meliorist impulse may emerge, presuming that what is entangled is better off disentangled, leaving entangled legality a concept less seen in practice than spoken of when practice goes awry. Entanglement, after all, is rarely a good thing. We generally seek to keep marine life from becoming entangled in fishing gear, we often try to help friends out of romantic entanglements and we certainly do not want our political representatives to be entangled in scandal. Here we push back against these impulses, arguing first that entangled legality is not reducible to some familiar other concept or category, and second, that entangled legality can be both durable and a force for political good, even while its durable presence raises challenges to state-centred approaches to legal theory. Contrary to intuition and impulse, then, we argue that entangled legality is here to stay in both legal practice and in legal theory, and that both may be better off embracing entanglement.

The context of our argument is the rapidly evolving relations between state and IndigenousFootnote ¹ legal orders in Canada. As we argue at length, the emergence of entanglement between these legal orders offers a clear instance of entanglement unlikely to be better explained by reduction to existing relations and explanations, and moreover, this entanglement presents what may over time become the replacement of Canada’s foundational unitary constitution by an equally durable pluriform foundation.

A brief foreshadowing of the context of our argument together with an explanation of its structure will serve as a helpful beginning. Canada was created in 1867 with the Constitution Act, 1867 (also known as the British North America Act, 1867, an act of the United Kingdom Parliament). Sections 91 and 92 of the Constitution Act, 1867 divide the powers and authority of the Canadian state, without remainder, between the federal and provincial governments. No constitutional power or authority is allocated to Indigenous peoples. Indigenous rights and claims have nonetheless been recognized in diverse ways since 1867. The Indian Act, 1876, a constitutional amendment in 1982 and several Supreme Court of Canada decisions have acknowledged the existence of Indigenous legal orders, albeit always through the particular lens of the Canadian legal institution undertaking an act of recognition – viewing claims of Indigenous law from the perspective and authority of the Canadian legal system and subject to the limitations set by Crown sovereignty and associated doctrines. Until very recently, this interaction was readily explained by what we have called elsewhere a state-centred approach to legal theory, taking the legal system of the sovereign state as the central instance and object of legal theory as a consequence of the sovereign state’s centrality to legal order in the post-Westphalian era.Footnote ²

The bulk of our argument presents evidence for the claim that practically and theoretically significant changes are occurring in the way Canadian legal institutions are engaging with Indigenous peoples’ legal claims rooted in the assertion of the existence of Indigenous legal orders existing without recourse to Canadian recognition as a condition of their existence. We demonstrate a gradual yet unmistakably foundational change as institutions of the Canadian legal system embrace a different approach to recognizing Indigenous peoples’ rights, claims and legal orders, through various letters of understanding, framework agreements and protocols. This new approach suggests a reconception of the basic terms of what this volume refers to as entangled legalities, from a supremacy-claiming systematicity view to one of ‘government-to-government’ partnership between state (federal and provincial) governments and Indigenous governments.

We proceed as follows. In Section 14.1, we show how claims to supreme authority made by Canada’s legal institutions have exemplified the descriptive-explanatory picture of law offered by state-centred analytical legal theory, while noting along the way the beginnings of recognition of the limitations or inaptness of such claims in the context of Canada’s changing relation with Indigenous peoples and their legal orders. In Section 14.2, we provide historical and recent Canadian evidence for the contingency of the relation between systemic claims of supremacy and the presence of durable legal order. Legal order, we argue, can and does exist in conditions of entanglement where there are no overarching legal systems claiming and enjoying some degree of supreme authority. In Section 14.3, we suggest an alternative to the system-centred view and the insistence on the necessity of a supremacy-claiming authority to the existence of durable legal order. That alternative was introduced in previous work, and is developed further here in the context of state–Indigenous entangled legality in Canada.

14.1 Supremacy Claims and Legal System

Generations of students of law and legal theory are familiar with the simple yet powerful characterization of the nature of law developed by H. L. A. Hart and those following in the analytical legal theory tradition to which he gave fresh life. According to Hart’s famous formulation in The Concept of Law, for a legal system to exist there must be a union of primary rules of obligation, which direct norm-subjects in what they must and must not do, and secondary rules, primarily addressed to and operated by legal officials, authorizing the creation, application and enforcement of primary rules as well as setting in general terms how the primary rules are to be identified or recognized in the first place.Footnote ³ Many institutions have such a union of primary and secondary rules, such as hospitals, schools and sports associations, so what makes legal systems – especially of the sovereign state kind – distinctive is that, unlike other institutions, a legal system makes a general claim to supremacy over all other types of normative systems. In the ‘Postscript’, first included in the second edition of The Concept of Law, Hart writes: ‘the distinctive features of law are the provision it makes by secondary rules for the identification, change, and enforcement of its standards and the general claim it makes to priority over other standards’.Footnote ⁴ While Hart left the notion of supremacy or ‘priority’ with little further development of its content, the idea became central to Joseph Raz’s largely complementary explanation of the concept of legal system. As Raz explains, in addition to comprehensiveness and openness, a general claim to supremacy is one of the unique and distinguishing characteristics of legal systems:

Raz offers this observation in the context of discussion about the necessary features ‘of all the intuitively clear instances of municipal legal systems’.Footnote ⁶ Raz’s claim is carefully delimited, announcing a focus on obvious central instances of state systems of law, leaving unexamined what might be regarded as borderline cases, and forms of legal order beyond the state, as may be found in international law. Yet even Raz’s delimited claim is subject to doubt, as critics argue that it may not be necessary to the nature of law that it claims supremacy, whether in state systems or other legal orders.Footnote ⁷ Here we leave this debate to one side, while observing that our argument regarding entangled legality in Canada supports the view that the relation between law and claims to supremacy is a contingent relation. So while our primary goals remain the demonstration of the existence of entangled legality and argument that entangled legality may be a good thing, our argument is of additional interest to the extent that it has implications for the project of general jurisprudence as an attempt to develop an explanation of law capable of scoping over all instances, without limitation to the post-Westphalian state which has dominated so much discussion at least since the initial 1961 publication of The Concept of Law.

The utility and limitations of the supremacy claim are usefully explored in application of the claim to explain the Canadian context in both historic perspective, and as new evidence shows Canadian adoption of something other than a supremacy claim in the self-conception of the Canadian legal system and the Canadian polity. Claims of supremacy have certainly been prominent, but now seem to be withdrawn in certain instances with regards to some Indigenous peoples, creating an explanatory demand unmet by the supremacy claim. Let us set out an outline of the historical presence of the supremacy claim, in preparation for demonstration of its recent retreat.

The supremacy claim has (at least) three dimensions, divided as follows.

Supremacy of norms. Like other sovereign states, at the foundation of the Canadian legal system is a unitary constitution, first the Constitution Act, 1867, now the Constitution Act, 1982. And like other state constitutions, the Constitution Act, 1982 contains a common supremacy clause. Section 52(1) reads: ‘The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.’Footnote ⁸ There is of course more than just constitutional law in Canada: there is federal law and regulation, provincial law and regulation, and judicial precedents. Yet these all occupy a particular place in the hierarchy of norms in Canada, with constitutional law serving as the top-down source of validity or authorization for all other types of law. The supremacy claim of the Canadian constitution, and its associated hierarchy of sources of law, is readily observable. John Borrows, for example, recounts the first time he encountered the idea of hierarchy as a law student in Canada:

One might suppose that including Indigenous rights within the Constitution of Canada would raise the level of protection of Indigenous law and so place it higher up in the hierarchy of Canada’s legal system. Such inclusion happened in 1982 with the creation of the Constitution Act, 1982. Section 35(1) reads: ‘The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.’Footnote ¹⁰ Yet it must be remembered that such recognition and affirmation are granted by the Constitution of Canada, and subject to amendment according to the amendment formula laid out in the Constitution. While there is a constitutional obligation to consult with Indigenous peoples in Canada regarding any amendment to sections 25 or 35 of the Constitution Act, 1982 or other parts of the Constitution which refer to Indigenous rights, any subsequent amendment only requires approval by a combination of federal and provincial governments. The approval of Indigenous governments is not required.Footnote ¹¹ This constitutional recognition of ‘existing aboriginal and treaty rights’ is evidently more substantial than mere recognition of the existence of residual customary Indigenous law, but that recognition remains an elaboration of the detail of the Canadian legal system’s supremacy claim, subsuming Indigenous rights, interests and laws within the Canadian constitutional order.

Supremacy of institutions. Canadian supremacy claims relative to Indigenous peoples’ law and legal order are also visible in the status and role of central institutions. Federal and provincial governments are granted exhaustive lawmaking authority under the Constitution, and federal and provincial courts are presumed to have exhaustive authority to resolve disputes. Indeed, as the highest court in Canada, the Supreme Court of Canada, through its judgements and opinions offers final, authoritative decisions on matters regarding Indigenous rights in Canada. As such, the Supreme Court of Canada naturally derives its authority and validity for its decisions through its place in the hierarchy of norms and institutions of the supreme, comprehensive, independent legal system in Canada. Viewing Indigenous rights through the lens of the Supreme Court of Canada is of course to view Indigenous rights through a lens which presumes the underlying supremacy of that court and the legal order it implements, and moreover, lacks the institutional means to interrogate or vary this presumption. The force of this presumption is usefully emphasized by Patricia Monture-Angus:

Aaron Mills offers a similar observation in the context of discussion of the nature of treaty relationships in Canada:

Similarly, Mark Walters identifies several instances where Indigenous peoples have denied – to little practical effect – the authority and sovereignty of the Canadian state and its institutions. That denial amounts to what Walters aptly calls an ‘existential threat’ to Canadian sovereignty, swiftly rejected by Canadian courts. Here is an example:

While the Supreme Court of Canada and other Canadian courts have on occasion questioned their jurisdiction to hear certain disputes, and sometimes refuse to offer judgements or opinions on issues they find not (or not yet) justiciable, there is entirely unsurprisingly little historical indication that courts conceived of themselves as institutionally able to question their general legitimacy as institutions of the sovereign Canadian state.Footnote ¹⁵ Yet as sometimes happens in social affairs, a sea change in attitudes and eventually practice has occurred in recent years, for various reasons beyond easy traceability, but with significant effects.Footnote ¹⁶ For example, in a 2014 decision then Chief Justice McLachlin of the Supreme Court wrote this about the test for establishing Aboriginal title to land:

Consideration of the ‘dual perspectives’ of Aboriginal groups and the common law when establishing title is a marked change from the Indian Act and earlier Aboriginal title decisions, but it still presumes that authority to make binding decisions regarding Aboriginal title rests with state courts and institutions, not Aboriginal ones. It is nonetheless clear that the demand for judgement incorporating ‘dual perspectives’ is the foundation of not just recognition of de facto entanglement, but choice of entanglement in the growth of the body of constitutional norms.

Supremacy of force. A further characteristic claim of legal systems of sovereign states, found hand in hand with claims of supremacy of norms and supremacy of institutions, is the claim to a monopoly on the lawful use of force. The Supreme Court of Canada has expressed this dimension of the Canadian supremacy claim in the course of identifying limits to Aboriginal rights in its 2001 decision Mitchell v. M.N.R.:

At the risk of belabouring the point, claims of supremacy of norms, institutions and the use of force in Canada all support the central observation in this section, that Indigenous rights, norms and institutions, to the extent to which they have legal status and force in Canada, have depended on the authorization and permission of the Canadian legal system. The approach to characterization of law and legal system developed by Hart, Raz and following analytical legal theorists is readily capable of explaining the Canadian situation and the respects in which it resembles and varies from other legal systems. That approach is equally capable of reminding us that the patterns of recognition just surveyed may or may not be indicative of a durable legal system combining claims to authority in fact generally accepted and practised by the society with which the legal system exists in an intimate relationship. In a relatively durable system such as that found in Canada, supremacy claims are generally accepted, as when provincial and federal governments accept the supremacy of constitutional law over their legislative acts (e.g. where courts strike down some legislative provision citing violation of a Canadian Charter right or provision), or when the police cede authority to the military over the use of force in times of emergency or martial rule. In other instances, claims to supremacy can be rejected in ways that are not readily explained as mere rule-breaking, or as attempts at revolution resulting in the dissolution of the state. Rejection of claims of supremacy of the Canadian legal system by Indigenous peoples are easily found, in contexts of entanglement where durable models for social life are sought beyond the discourse available in a supremacy-presuming state and peoples subject to its supremacy claim. For example, in This Is Not a Peace Pipe, Dale Turner begins with the following observations about the legal status of Aboriginal rights in Canada:

In some instances, First Nations not only claim independence as sovereign nations alongside Canada, but assert a kind of reversal of the hierarchy and stream of supremacy claims. Some First Nations assert authority to validate the inclusion of settler peoples and institutions into the family of legal orders present in North America. For example, Turner notes this particular feature of an Iroquoian treaty known as ‘the Guswentha’ or ‘Two Row Wampum’, an agreement which symbolizes ‘peace, friendship, and respect’Footnote ²⁰ and serves to constitute the relationship and standing between Indigenous peoples and settlers:

This reversed supremacy claim is of interest as a matter of both the history of the relations between Indigenous peoples and the Canadian state, and for reasons internal to the Canadian state and its self-understanding. Borrows has done perhaps more than anyone else to show that the creation of the Canadian state and its legal system has in its roots a nation-to-nation treaty, recognized, for example, by the Royal Proclamation of 1763.Footnote ²² As Borrows argues, the Royal Proclamation of 1763 presumes, and was understood by Indigenous peoples at the time as recognizing, equal standing between Indigenous peoples and settler peoples, including the British Crown itself. On such a view there was no domination of one nation or government over another, but acknowledgement that the validity of agreements regarding the use and title of land, respective self-government and all other aspects of interaction required mutual recognition. Borrows sets this understanding of the relationship between Indigenous peoples and settler peoples in Canada in stark contrast to the view of a unilateral assertion of Crown sovereignty, which prevailed around the time of Confederation in 1867 and continues in many ways until the present day, marking a kind of deliberate Canadian forgetfulness made possible by the prevailing imbalance in political power between the thoroughly established settlers and the substantially displaced Indigenous peoples. There is nonetheless room in the content of the Canadian legal system’s self-conception for a return to a collaborative, entangled stance with respect to Indigenous legal orders, warranting further attention to past and present conditions of engagement between Canadian and Indigenous legal orders.

Borrows’ work is again instructive. In light of the Supreme Court’s acknowledgement of the need for a ‘dual perspective’, we can ask the question of what, from a First Nations perspective, gives treaties between Indigenous peoples and settler peoples their validity, which sets terms for engagement and perhaps entanglement. Borrows notes that for many Indigenous peoples, there is an important idea of sacred law: ‘Laws can be regarded as sacred if they stem from the Creator, creation stories or revered ancient teachings that have withstood the test of time. When laws exist within these categories they are often given the highest respect.’Footnote ²³ Sacred laws, then, as supreme laws or laws deserving the highest respect, can serve as the source of validity for treaties. Borrows explains how this view can be found regarding treaties signed in parts of Western Canada:

As Borrows explains, however, the Creator and Crown are not on equal footing in this respect. The Crown, much like Indigenous peoples, is subject to the laws of the Creator, who is supreme. Borrows quotes one particular Elder:

As we saw earlier, there is a long history of assertions of the supremacy of the Canadian legal system over First Nations, largely matched by First Nations’ acquiescence or practical inability to contest those claims even when the claims arguably amounted to Canadian self-misunderstanding omitting recognition of the force of prior treaty agreements. There is nonetheless an additional history of competing assertions of independence on the part of First Nations, although these assertions most often do not also claim to serve as authority over settler laws. In the passage just quoted, however, we do have an example where sacred Indigenous law is the source of validity for other Indigenous laws and treaties, and additionally claims to serve as the source of validity for the presence of settler peoples and their laws.

14.2 The Contingent Relation between Supremacy Claims and Law

We now arrive at a crucial question: are assertions of the existence of legal system, and in particular assertions of supremacy of the kind visible in the Canadian legal system, necessary or inevitable in understanding and constructing the relations between state governments and Indigenous governments in Canada? Historical evidence and recent agreements suggest the answer is ‘no’. Historically, assertions of legal systems and claims of supremacy were not always the way that settler peoples and institutions related to Indigenous peoples in what is now Canada, and very recently there seem to be instances of a return – or at least steps towards a return – to older ways of conceiving such relations. Looking first at pre-Confederation times, we can find evidence of a preference, on the part of many Indigenous peoples, for the terms of the Royal Proclamation of 1763, issued by the British Crown, over the terms and understanding of the British North America Act of 1867 (also known as the Constitution Act, 1867) which created modern-day Canada. Borrows again offers a helpful account. He argues that while the Royal Proclamation has appeared to Canadian courts as an effective unilateral assertion of Crown sovereignty, it was understood by First Nations at the time to be an important nation-to-nation treaty of peace and friendship, which would honour First Nations’ ownership of land and self-government.Footnote ²⁶ The Royal Proclamation, in this sense, was understood by First Nations to be a kind of sovereignty-protecting international treaty. This understanding and relationship was threatened, as many First Nations believed, by the Constitution Act, 1867, as well as the subsequent patriation of the constitution to include a domestic amending formula:

For many Indigenous peoples the idea of a nation-to-nation treaty or partnership is best exemplified by the Guswentha or Two Row Wampum mentioned in Section 14.1, a form of treaty which originated in agreements between Indigenous peoples (such as the Iroquois or Haudenosaunee) and European settlers. Turner quotes this well-known explanation of the Two Row Wampum:

Despite these First Nations perspectives, the idea of a nation-to-nation treaty or partnership did not survive in settler understanding and was simply given no recognition at the time of Confederation in 1867 and subsequent practice. As the above account showed, the Canadian state opted for the extinguishment and then subsumption of Indigenous legal orders. Recently, however, the idea of a nation-to-nation partnership has resurfaced. In various framework agreements, letters of understanding and reconciliation protocols signed by First Nations and provincial and federal governments, relations are being expressed and understood not in a hierarchical or delegated fashion, but rather as relations of ‘government-to-government’ or ‘true partnership’.Footnote ²⁹ Many of these agreements are quite recent, so have yet to be seen in full operation, but an early framework agreement and subsequent legislation and practice provide a good illustration of the way in which state and First Nations relations are evolving. The Framework Agreement on First Nation Land Management was created in 1996 and signed by the government of Canada and thirteen First Nations, and is expressly characterized as a ‘government-to-government’ agreement.Footnote ³⁰ The central purpose of the Framework Agreement is to allow ‘First Nations to opt out of the land management sections of the Indian Act and take over responsibility for the management and control of their reserve lands and resources’.Footnote ³¹ As its name suggests, the Framework Agreement has since served as a framework and source of law for both the government of Canada as well as First Nations:

This statement from the Lands Advisory Board, an institution established under the Framework Agreement and comprising representatives of several First Nations, makes plain how First Nations understand the Framework Agreement and the First Nations Land Management Act. As First Nations see it, the Framework Agreement, which is not federal legislation or policy, or an amendment to the Canadian constitution, represents a foundational agreement and source of law outside the traditional hierarchy of legal norms in the Canadian legal system, giving rise to obligations on the part of the Canadian government. So while it might be observed that the First Nations Land Management Act is a federal statute, as it is, and so stands in a familiar place in the hierarchy of legal norms in the Canadian legal system, the First Nations Land Management Act must also be seen as deriving its ultimate validity and authority from recognition by both the Canadian government and First Nations.

What makes the Framework Agreement, together with the First Nations Land Management Act and the many First Nations land codes now in operation, an example of entangled legalities, and why is it important to understand the social situation in this way? It might be tempting to suppose that First Nations gaining greater control over management of their lands, which also includes the authority to create a range of criminal offences,Footnote ³³ authority which has historically been held in Canada by the federal government alone, represents a step towards independence of the sovereign state kind. If this were true, then we would not have an instance of entangled legalities but perhaps some form of secession then treaty under international law. However, under arrangements such as the Framework Agreement, fragmentation into several sovereign states within Canada is not contemplated. Rather, what is sought are forms of self-government which depend on mutual recognition and thick intermingling of norms and institutions from diverse sources of ultimate authority. A recent case provides a good illustration.

The K’omoks First Nation in British Columbia created their own land code in 2016 in accordance with the Framework Agreement and the First Nations Land Management Act. Section 31.1 of their land code reads: ‘Any person who resides on, enters or remains on KFN [K’omoks First Nation] lands other than in accordance with a residence or access right under this Land Code or under a Law is guilty of an offence.’Footnote ³⁴ Two non-K’omoks First Nation renters, Thordarson and Sorbie, had failed to pay their rent for several months on a property on K’omoks First Nation lands, and after having been given formal notice to vacate by the K’omoks First Nation, did not leave the premises. They were then considered trespassers by the K’omoks First Nation and guilty of an offence under the Land Code. As the Provincial Court of British Columbia recounts, the K’omoks First Nation requested assistance from the Provincial Prosecution Service and Federal Crown, a provincial institution and federal institution respectively, to help in prosecuting and enforcing the laws of the K’omoks First Nation Land Code, since the Land Code, in accordance with the Framework Agreement, makes reference to the Canadian Criminal Code, a federal statute, as establishing the process for prosecuting the range of criminal offences created in the K’omoks First Nation Land Code. However, ‘both the Provincial Prosecution Service and Crown Federal have declined to assist K’omoks’.Footnote ³⁵ The court writes:

The idea of a ‘private prosecution’ of a criminal offence is a novel development in Canada, where criminal offences have always been considered as offences against the state so prosecutable only by the state. Private prosecution, however, is made possible by the nature and provisions of the Framework Agreement, the First Nations Land Management Act and particular First Nations land codes.Footnote ³⁷ The court concluded that the K’omoks First Nation was entitled to a remedy, and in this case to an order to remove Thordarson and Sorbie from the property on K’omoks First Nation land.

However, we need not take the characterization of ‘private prosecution’ at face value, as appearances might be deceiving, and there might be an alternative understanding available. What might look like private prosecution from one perspective could also be viewed as an assumption of public prosecution by a hitherto unrecognized institution. On this understanding the possibility of prosecution by the K’omoks First Nation was not a delegated power, expressly or implicitly provided by the federal government; the K’omoks First Nation did not, in this sense, pull on some chain of validity to initiate a criminal proceeding, but instead assumed and so created the power itself. If we keep in mind as well that criminal offences are typically considered to be the most serious forms of voluntary wrongdoing, which therefore concern not just individual victims but political communities in their entirety, then assumption of the power to prosecute can easily be understood as assumption of a public power to address issues which are not merely of a private nature. Recognition by state courts of such a power might then be much more than simply toleration of a private exercise of power by federal and provincial courts; it might be part of the mutual recognition by state and Indigenous authorities to share in the creation, application and enforcement of criminal law, which was once within the sole purview of the federal government but no longer.

The details of the K’omoks case show, we suggest, that it is implausible to see First Nations law and state law (provincial and federal) as representing distinct legal systems, operating independently at the level of both norms and institutions. The entanglement is unmistakable. The ultimate source of law and authority of First Nations land codes such as the K’omoks First Nation Land Code is shared between First Nations and the federal government by virtue of the Framework Agreement. And at the level of application and enforcement of law, norms sourced in First Nations law as well as federal law coexist and complement each other, and institutions from both the K’omoks First Nation and state government (e.g. provincial courts) are envisioned in a relationship of coordination and assistance. Thordarson and Sorbie might become a precedent-setting case, and likely one which establishes some of the relations of entanglement required for First Nations law and state law, as well as their respective institutions, to coexist and operate within Canada.

Still, one might object, why could we not understand the relation between the state and First Nations, in instances such as those presented in Thordarson and Sorbie, as distinct but interacting legal systems, much like some claim we see in the European Union where there are longstanding rival supremacy claims made between member state courts and the Court of Justice of the European Union on behalf of their respective legal orders?Footnote ³⁸ To see why, we must remember from earlier discussion that to be a legal system requires a distinctive claim to supremacy over all other legal and normative orders in the same social space, as the ultimate foundation for all other applicable law, and this is precisely what is missing in the interaction between state and First Nation institutions regarding First Nation land codes. The foundation of such land codes is the Framework Agreement, a government-to-government framework of mutual understanding and recognition between the federal government and First Nation governments. In broader terms, as one of us elaborates elsewhere,Footnote ³⁹ legal systems are social constructions, constructed out of the beliefs, intentions, self-understandings and practices of relevant actors. Supremacy claims are part of the beliefs, intentions, self-understandings and practices of relevant actors for the creation and existence of legal systems, so where these are absent, legal systems are absent as well. The framework agreements, letters of understanding and reconciliation protocols we find in Canada are evidence that, however incrementally, the relevant beliefs, intentions, self-understandings and shared practices of state institutions and First Nation institutions are moving away from supremacy-claiming systematicity towards something else. Simply put, we might be witnessing the social reconstruction of the character of legal relations between the state and First Nations.

To bring the argument of this section full circle, even while further coordination is required to manage the entanglement, for First Nations law and state law to coexist, all that is required is mutual recognition of each other’s legal orders. Claims of one order to supremacy over the other are neither necessary nor inevitable as a matter of social fact regarding the existence of law in the durable alignment and intimate relationship between law and society most familiar from the life of the sovereign state. And as we have seen, claims of supremacy, and in particular claims of supremacy made by state institutions over First Nations institutions, would only act as political obstacles to shared goals of reconciliation and partnership.

14.3 A Conceptual Alternative to Legal System

We have sought in this chapter to demonstrate that entangled legality exists, and that in at least the case of Canada–First Nations relations, it is viewed as desirable. Along the way we have undermined the applicability of the concept of legal system and opened the way to asking whether there is an alternative to the concept of legal system (and primarily its state-based form) for thinking about law in general, and more particularly the relations between legal orders.Footnote ⁴⁰ In previous work we have developed what we call an ‘inter-institutional view of legality’ amplifying themes found in Neil MacCormick’s work on institutional normative order. The inter-institutional view is particularly useful for the explanation of relations between Canadian state institutions and First Nations legal institutions. The primary descriptive-explanatory benefit of our view lies in its showing how relations of mutual reference can arise between institutions within and across legal orders, operating in ways that need not be viewed as carrying implicit or explicit supremacy competitions as part of their purpose or function. Relations of mutual reference, whether codified in law or formal agreements, or simply found as a matter of social practice, may of course take the form and character of hierarchical relations of supremacy and comprehensiveness; but it is also possible for them to take the form and character of horizontal relations of partnership or shared governance, as we have seen in the case of Canada–First Nations relations. The actual form and character of relations of mutual reference, in other words, is variable, and contingent upon the particular ways in which social groups intend, practice and understand – that is, socially construct – their relations to each other.

The inter-institutional view is designed as a morally neutral descriptive-explanatory view of law, and as such, its possibility and success as a conceptual view of law stands or falls on its success in explaining in general terms (i.e. across as wide a range of contexts as possible) the social fact existence of law (including the existence of legal order between legal orders) wherever and whenever it exists. That said, if such a view is successful on descriptive-explanatory grounds, its adoption in practice may identify political options or possibilities of a morally desirable nature which might otherwise remain hidden from view under prevailing conceptual understandings, such as the understanding of law which ties it squarely to the idea of a state-based legal system. As we have seen in the context of Canada, where there is a politically desired goal of reconciliation between settler and Indigenous peoples, the inter-institutional view seems superior to the state system-centred view in making visible and characterizing a form of non-dominating, non-hierarchical relationship between legal orders. This reconceptualizing will not of course solve all legal, political, moral and economic problems, but it has the potential to address one particular challenge of reconciliation identified by Borrows, Turner and many others: the challenge of reconceiving the status of Indigenous peoples and their legal orders as something other than subordinate to the comprehensive and supreme Canadian legal system.Footnote ⁴¹ The inter-institutional view of law may be a particularly useful precursor or accompaniment to politically viable reconciliation between Canada and First Nations.

Relations of mutual reference between institutions are also a particularly helpful tool for detecting the emergence of new legal orders, especially in contexts where there is a plurality of entangled sources of law. In the Canadian context, we might be witnessing a shift away from recognition of a unitary constitution and towards a plurality of constitutional sources.Footnote ⁴² Since Confederation in 1867, the Constitution Act, 1867, then the Constitution Act, 1982, have served as the unitary Constitution of Canada. Yet if the socially accepted relations of mutual reference expand to include various foundational framework agreements, letters of understanding and the Royal Proclamation of 1763, these ultimate sources of rights and obligations might reasonably be viewed as constitutional moments, and so new (or revived) constitutional sources of law and authority. Unitary constitutions might be the ideal in some circumstances, but perhaps not so in others. Relations of mutual reference, which might follow existing, established law or might not, can be seen to have a kind of reconstitutional power if they occur at a basic, foundational level. Such reconstitutional power might not only be possible but highly desirable in some contexts.

Clearly, much remains to be done to specify how the inter-institutional view works as an alternative to system- or supremacy-centred views in particular contexts, including state–First Nations relations in Canada. This is not our aim here, as we aimed to demonstrate only the existence of entanglement and its desirability in some circumstances, and in that context articulate a broader lesson regarding the contingency of the system- or supremacy-centred view and the consequent importance of exploring alternative explanations such as that offered by our inter-institutional view. We plan to continue this line of argument in future work. What does remain to be done here is to return to the organizing theme of legal entanglement.

A system-centred concept of law is one way of characterizing relations between multiple legal orders, so setting the basic terms of entanglement as ones of hierarchy, supremacy and delegation. As we have demonstrated, however, the system-centred concept represents one choice of explanation among others. In particular contexts, such as that of Canada, the choice of a system-centred concept may pose an obstacle to both the explanation of changes occurring in an evolving constitution and its relation to adjacent legal orders, and a further obstacle to an imaginative exploration of ways to achieve particular political objectives such as recognition and reconciliation between state institutions and Indigenous peoples. Exploration and development of basic terms of entanglement of mutual reference, partnership and non-hierarchical shared authority is therefore important not only as a tool for successful descriptive-explanation of the range of possible social facts comprising law, but also for surfacing conceptual choices which might assist in achieving morally desirable political objectives. We followed in detail one instance of legal entanglement in the example of application and enforcement of a First Nation land code, finding in this example the elements of a new, positively entangled First Nations–state relation showing the possibility of durable coexistence in an era of ‘nation-to-nation’ or ‘government-to-government’ partnerships. Throughout our exploration of legal system, entangled legality and evolving state–First Nations relations, we have shown that there is choice in how to present, understand and reconceive foundational state–First Nations relations. This is a choice about the basic terms of legal entanglement, the basic terms about how relations among legal orders of different communities and cultures are to be characterized and practised, ahead of and during the task of working out the particular ways in which norms and institutions will interact and mutually refer to each other.

15.1 Entangling Law ‘from Below’

In a world that is deeply entangled, the relations between different bodies of law, different legal systems and individual norms originating in different systems are necessarily called into question. ‘Cases’ increasingly traverse legal systems and implicate subjects of multiple jurisdictions; conflicts in places far apart are, moreover, deemed comparable and references to norms that were applied to similar cases in different places are made by all involved actors – judges, lawyers, plaintiffs and defendants – irrespective of the legal specificities that distinguish jurisdictions. ‘[B]odies of norms become “entangled” not only as a matter of fact, but also in discursive construction … Actors – litigants, judges, dispute settlers, observers, addressees – make claims about the relation of norms from different backgrounds, and they thus define and redefine the relative weights and interconnection between the norms at play’, writes Nico Krisch in Chapter 1.Footnote ¹ Relations between different legal systems and different bodies of law today are increasingly relations of mutual information;Footnote ² legal ‘systems’ are brought into conversation and challenged to influence and learn from each other by the various movements that are driving entanglement.Footnote ³

Among the diverse processes that lead to an increasing entanglement of laws in the current global situation as sketched out in Chapter 1, I am here concerned with one specific movement of entanglement, namely the way in which law is entangled by its mobilizations in local social struggles. In a world in which ideas of justice, rights and entitlements circulate among people far apart and concerned with very different problems, people perceive themselves to be in situations comparable to those of others and shaped by similar forces. Such struggles have regularly invoked norms from international conventions and from hitherto unrelated bodies of law such as environmental law, trade law and human rights or constitutional law. They have referred to presumed precedents from other situations and claim that norms from different jurisdictions and various bodies of law are applicable to their concerns. They hold accountable actors far removed from the occurrences in question, but who are, in their reasoning, deeply implicated in the conflicts at issue. Last but not least, they mobilize norms not hitherto incorporated into state law or international law – moral norms or those stemming from other (non-state) normative orders – and ‘translate’ them into the available legal instruments.

With these mobilizations, new possibilities for negotiation and the pursuit of legal rights are being sought.Footnote ⁴ Evocations of other norms may be strategic, as they mostly are when activist lawyers campaign to have certain interpretations of harms be heard, such as when they claim that damage to the environment amounts to a violation of the human rights of those affected in their health or livelihoods by environmental degradation, and when they advocate specific avenues of redress. Evocations of other norms might also result from lay views of rights that do not differentiate between different systems of law and are oblivious to the origin of a norm in a specific system, assuming a general validity of the legal norms that promise rights.Footnote ⁵ Their hopes in law make broad comparisons about what is to be treated as – structurally – the same in cases far apart and located in multiple jurisdictions, and by making claims about the comparability of such cases they seek access to norms that promise rights. They operate by ignoring – strategically or idealistically – any boundaries between systems or bodies of law, be they jurisdictional or material, and furthermore, they interpret such bodies and systems of law in the light of moral norms which give them a particular content. ‘Often enough, these linkages may connect individual norms, rather than “bodies” of norms as such, thus taking us yet further away from the notion of closed systems’ writes Nico Krisch in Chapter 1,Footnote ⁶ and we can see in these mobilizations of law ‘from below’ what he calls ‘the trans-systemic, networked character of law’ emerging.Footnote ⁷

These entangling mobilizations of law ‘from below’ often occur in highly asymmetrical relations; they concern, in particular, struggles around human rights violations and the destruction of the environment along the long global chains of value production. I argue that because they mobilize law in such asymmetrical relations against more powerful adversaries, their entanglements of law most often strive – implicitly – for a trans-systemic coherence. Entanglement stops short of integration, as Nico Krisch explains. I would argue that the moves towards normative relationality that these mobilizations of law from below engage in are moves to overcome the boundaries around legal systems and bodies of law and towards a trans-systemic and unsystematic coherence. Their end is not integration in a systemic sense; in fact, they do not bother with systematicity, but operate with fluid relations between existing norms. Moreover, these moves are concurrent with moves towards the ‘distancing’ of legal orders and bodies of law, or their entanglement along different lines – what could be called ‘counter-entanglements’.

However, at the same time that we see the plurality of legal orders moving into such fluid and dynamic relations of conversation, entanglement and distancing, we can also observe a tendency in law towards a particularization, or rather ‘singularization’, that not only distances normative orders from each other, but disentangles law. As in the case of entanglements, this is also a desystematization, but one that proceeds through the treatment of individual cases as singular. There appears to be a broader tendency in dispute resolution away from seeing the general norm in the particular case and towards treating incidents and constellations as solitary. This is evident most prominently in procedures such as arbitration, out-of-court settlements and alternative dispute resolution. These all focus on the specific circumstances of a single case, and the unique constellation of parties concerned, and aim at an agreement between those involved, rather than finding solutions according to a general norm. Even though the procedural norms governing these practices of singularization might become more alike, given that forms of arbitration and mediation are standardized and subject to increasing professionalization, cases are treated in their singularity. This might indicate an incremental but fundamental transformation in law that coincides with increasing entanglement, and counteracts it. In the following, I try to understand this coincidence and the dynamics of entanglement and disentanglement that ensue and which possibly prevent the legal change that is sought by movements towards relational coherence.

15.2 Cutting the Network

To understand movements of entanglement from below, we might consider in what way liberal law is at base an instrument of disentanglement, not only because it is so deeply shaped by its relation to the nation state and its borders, but also by way of its very categories, which – for better or worse – have at their horizon the protection of individual liberty and subjective private rights.Footnote ⁸ I find it useful to employ Marilyn Strathern’s analysis of the specificities of modern liberal law to understand how our current legal instruments cut, into small segments, issues that are increasingly perceived by those concerned as crossing the boundaries of jurisdictions and entangling us in fundamental interdependencies. In her response to Bruno Latour’s assumption about the prolongation of actor networks in modernity, she held that while the chains of interaction may become ever longer in modernity, modern institutions of law cut these chains at particularly short intervals. Strathern takes the example of intellectual property rights,Footnote ⁹ which privilege the ‘invention’ and the inventor, rather than accounting for the endless chains of actions that make a certain invention or innovation possible. She observes that many ‘traditional’ legal institutions take into account the sociality of property, and therefore reflect to some degree the actor networks that produce ‘property’, while modern legal institutions quintessentially abstract from, and thus disregard, these social relations.

From such an anthropological perspective, contemporary legal institutions could be said to ‘cut’ interdependent chains of action in several ways: first, as addressed by Strathern, they perform specific cuts around who is actually legally recognized to be a participant in the production of a situation or event. Such cuts can also take other forms. Stuart Kirsch, for example, when comparing the notions of liability that were raised by different Melanesian groups with those raised by multinational companies on the basis of scientifically established causal relationships, found that Melanesians hold accountable those who have created the context for a particular social interaction that has led to harm:

Such varying scopes of the social networks that are considered relevant for an issue concern not only the question of who is considered to have participated in bringing about a state of affairs, but also who can be considered affected by it in law. Here, too, liberal law relies on a narrow idea of who is personally affected and can thus appeal to law, and has instituted only a few exceptions in the form of public interest litigation.

Second, there are cuts around the time of an event. The most prominent temporal ‘cuts’ are forfeiture and limitation periods, which might fundamentally jar with the temporality of the effects of a contested action, the time of harm and suffering.Footnote ¹¹ There are also more basic cuts in the temporal reach of law, which concern the narratives of when a situation actually begins and how long it lasts. This leads us back to Strathern’s concern with the cuts within actor networks, which are, of course, also cuts in time.

The third set of cuts in liberal law are the ways that it separates different fields of practice. Particularly in international law, different bodies of law stand in relatively independent relations to each other,Footnote ¹² separating trade from human rights, labour law from ecological issues, etc. More generally, the differentiation of various fields of law might not be entirely congruent with the factual interdependence of the fields of interaction that they regulate. Anthropologists have long questioned the adequacy of descriptions of social differentiation as conceived by understandings of modernity based on differentiation theory, observing the continuing interdependence of different fields of interaction even in what are considered highly differentiated societies.Footnote ¹³

These cuts of liberal law culminate in distinctions concerning what can actually be addressed by legal measures, and between what is offered legal protection and what is not. These might constitute the most pressing cuts for the mobilizations of law from below, since such mobilizations address precisely the specific distribution of rights and privileges provided by current legal instruments. Human rights, for example, often the instrument of entangling legal struggles, protect only some concrete, specific individual rights. Although ‘poverty, racism, sexism, imperialism, colonialism and exploitation’ might be considered to violate the freedom and dignity of individuals,Footnote ¹⁴ these are forms of suffering that today cannot be addressed legally as injuries for which someone is liable. The loss of livelihood, or of employment, for example, is regulated via insurance and social welfare, or not at all, but is in most places not legally considered a violation of individual rights, because myriad forms of dispossession are legal. The fact that contemporary legal instruments rely at base on subjective private rightsFootnote ¹⁵ makes for their inability to address what are still called structural issues or ‘root causes’.Footnote ¹⁶

These cuts are increasingly challenged by the mobilization of law ‘from below’ when people apply existing legal norms to their situations and entangle them with others, making claims that reinterpret and widen the scope of the norms’ applicability to address the forms of suffering that they experience. They address the perceived inadequacies of current legal instruments to reflect the factual relations that shape our world and strive for (legal) change by advocating relations between different normative realms. Thus, the very legal norms that are in themselves inadequate to reflect the situations of suffering because of the diverse cuts through social relations in time and space that they entail are entangled in a way that produces novel meanings. They propose novel normative interpretations, thereby creating what Susanne Baer has called ‘legal trouble’,Footnote ¹⁷ claiming what does not – yet – exist in dominant legal discourse and hence opening up the possibility to think and speak itFootnote ¹⁸ – and possibly think and speak it into being.

15.3 Mending the Cuts: Entanglements from Below

Here I would like to consider the mobilization of law from below, which struggles against the cuts of liberal law by means of liberal law itself. There appear to occur two principal contestations in these mobilizations of law, each of which entangles law in specific ways to overcome specific ‘cuts’ of liberal law. One is the contestation over the attribution of responsibility in the long chains of ‘distributed agency’ across the globe. The second type of contestation is over which norms actually apply to a case. This often also contests the limits of what can be addressed legally as a harm.

The field in which such struggles against the ‘cuts’ of liberal law are possibly most evident is struggles around human rights violations and environmental damages along the long global chains of value production. The transnational lawsuits brought by people affected by harm resulting from the activities of multinational corporations concern the question of who is to bear responsibility for this harm.Footnote ¹⁹ Such transnational lawsuits first attempt to expand the scope of responsibility from the person on the ground, whose actions directly lead to harm, to the headquarters of multinational companies. This move raises the question of where to sue, and thus, which jurisdiction and which legal system comes to bear on the case.Footnote ²⁰ Transnational lawsuits thus entangle the laws of host states with those of the home states of multinational companies. Furthermore, they often try to distribute the burdens of liability anew by renegotiating mediate responsibility: actions and omissions that enable (rather than directly cause) situations of damage and injury are increasingly moving to the centre of litigation.Footnote ²¹ They address a wider range of actors than conventional legal treatments of global value chains, which typically cut short these chains into contractual relations between a limited number of actors. By addressing a larger set of actors, such struggles entangle the laws that regulate liability, tort and criminal responsibility in the various legal systems to which the actors partaking in these long chains of production and consumption are subject. In both tort and criminal law, claimants as well as lawyers are reaching ever farther, drawing causal and moral connections between events, actions, suffering and remedies.

Current legal initiatives such as the French loi de vigilance, the Lieferkettengesetz debated in Germany or the Konzernverantwortungsinitiative in Switzerland all seek to transform both the delineations of jurisdictionsFootnote ²² and, to a lesser degree, the relative weight of primary and secondary responsibility. However, to the extent that these laws and legal proposals concern very specific obligations, such as disclosure requirements or due diligence principles, and rely on rather nebulous identifications of a corporation’s ‘sphere of influence’, they do not overcome the narrow spatial or temporal cuts of current conceptions of liability.Footnote ²³

At the same time, such struggles over the attribution of responsibility are now sometimes carried onto a different level. Litigation against states, the host states of multinational companies as well as – particularly in relation to climate change – the home state of companies that globally pollute or enable pollution, is increasingly chosen as an avenue of protest via law. For example, in a case brought against the Ministry of the Environment of Ecuador and the state-owned mining company ENAMI EP over a mining concession granted to the Canadian company Cornerstone, which Laura Affolter observedFootnote ²⁴ – the ‘Los Cedros case’ as it is referred to – claims were made not against the corporation, and not for harms that had occurred. Rather, the plaintiffs targeted the government of Ecuador for issuing the licence for mining, thereby shifting responsibility to the state for making economic activities possible that would – in their perception – inevitably produce harms to the environment and the people living in the vicinity of the mine.

The shift from local causers to transnational enablers is now followed by a shift from those transnational enablers to the states that make their operation legally possible – the enablers of the enablers, so to speak. This puts at issue the legal structure in which corporations, or rather corporate activities, are embedded. Such legal structures are today not made by states alone, particularly as concerns international law, as multiple actors including corporations, international organizations and private law firms are increasingly involved in drafting law.Footnote ²⁵ International organizations such as the World Trade Organization (WTO) and the International Monetary Fund (IMF) have developed their own norm-generating formats, and while they are formally constituted by their member states, only some states have an effective say in them. This should not deflect attention from legislatives as lawmakers, administrations as issuers of licences and governments as signatories to investment treaties and the governmental decisions that make corporate activities possible. Even if some states are severely restricted in their choices of whether or not to ratify international agreements, formally it is states that make the laws that regulate the global economy and give corporations their legal shape. More importantly, it is state governments that choose which laws to enact, and how and when to enact them.Footnote ²⁶ This is what Shalini Randeria pointed to with her observation of the ‘cunning’ of states to avoid accountability towards their citizens.Footnote ²⁷ Randeria also points to the differences among states in the degree of autonomy they have towards international organizations, corporations and international law. However, it could be claimed that even severely ‘dependent’ states have room to manoeuvre, and the way they do so is a matter of political choice. Ecuador is an interesting example in this regard, considering the different choices subsequent Ecuadorian governments have taken.

The ongoing claim against the state of Ecuador in the Los Cedros case mentioned above calls into question the mining policy adopted by the current government, and with it its entire economic policy. In this way, it inches closer to challenging the production of the structural possibilities of harm that have so often been overlooked in human rights struggles.

Such claims not only shift responsibility onto states – host states as well as the home states of multinational companies – but further, by focusing on the creation of the legal conditions for harmful activities by multinational corporations, they involve a move from retrospective responsibility to the prospective responsibility to prevent potentially harmful operations. It might be too early to speak of ‘a (re)turn in the understanding of responsibility’, as Klaus BayertzFootnote ²⁸ put it, with prospective, precautionary responsibility, and possibly even strict liability gaining in importance in law. However, such normative possibilities become part of the debate as a result of mobilizations of this kind, and it is to some degree independent of their legal outcomes whether they thereby provide a model for new legal ‘imaginations’Footnote ²⁹ that ‘consider possible or alternative solutions to the problem’,Footnote ³⁰ and are taken up elsewhere, travelling to new sites and situations and yet further interpretative translations.Footnote ³¹

15.4 The Import of Other Norms

The interpretations of the responsibilities of different actors thus challenge the jurisdictional cuts currently shaping liability. Beyond these jurisdictional entanglements engendered by the mobilization of law from below, it is the actual ‘import’ of other norms into the legal reasoning pertinent to a case that entangles law in these struggles over the harms that result from global capitalism. To come back to the case brought against the Ministry of the Environment of Ecuador and the state-owned mining company ENAMI EP over a mining concession granted to the Canadian company Cornerstone, potential harms addressed were those to a healthy environment, harms to livelihood and harms to nature. The lawyer for the plaintiffs argued on the basis of Articles 71, 73, 397 and 407 of the Constitution of Ecuador that enshrine the principle of ‘buen vivir’ and the rights of nature as inherent in it. Other activist lawyers at first criticized the mixing up of claims to the rights of nature and the rights to a healthy environment, arguing that these were separate issues, and that the rights of nature were not well served by being mixed up with, or even identified with (and reduced to), rights to a healthy environment. They then changed course, and joined as amici curiae to invoke Article 11 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), which establishes the right to a healthy environment and states that everyone shall have the right to live in a healthy environment and to have access to basic public services, and that the signatory states shall promote the protection, preservation and improvement of the environment. They referred to the Stockholm Declaration of 1972 and to the judgement of the Inter-American Court of Human Rights (IACrtHR) in the case of Indígena Yakye Axa v. The State of Paraguay, which established property rights over ancestral land and the state’s obligation to protect the traditional means of livelihood of Indigenous communities as part of the right to life. Furthermore, they referred to an Advisory Opinion of the IACrtHR (OC-23/17, 15 November 2017), the Rio Declaration on Environment and Development (1992), the Convention on Biological Diversity, the United Nations Framework on Climate Change and a judgement by the Columbian Constitutional Court. In the second instance, the ‘Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean’ was added to this list.

The claim thus brought into relation regulations on biodiversity with social and economic rights, judgements on Indigenous rights and resolutions on states’ obligations to take measures preventing further climate change. Moreover, the concept of buen vivir, which was incorporated in the Ecuadorian constitution in 2008, could be said to directly challenge the cuts that liberal law makes to separate different fields of human action. Characteristic of the principle of buen vivir is that it overcomes the opposition between human and non-human nature that modern law creates by separating the bodies of law that regulate the economy, intimate relations, the use of resources and the treatment of non-human nature. Like the Indigenous approaches to law that Kirsten Anker describes in Chapter 3, buen vivir provides for norms that perceive all relations as inextricably entangled.Footnote ³²

Everywhere, the constitutional claims made in the name of the rights of nature or in relation to the right to life and physical integrity aim at structural change that goes far beyond legislating binding due diligence norms for corporate legal responsibility. In this way, they transgress the conventional limitations of which harms can actually be addressed by law. The claim that issues regulated by different bodies of law are in fact intricately connected is a central proposition in such struggles. Keebet von Benda-Beckmann shows how, paradigmatically, in the dispute about the availability of low-priced AIDS medicine, the WTO accepted the argument that the prices of medicines were not only an issue of free trade regulation, but also one of human rights: ‘In this dispute two bodies of law that had been regarded as separate, had been successfully linked. WTO could no longer reject the human rights as not belonging to its relevant context. From now on, arguments of human rights are in principle legitimate claims in WTO procedures.’Footnote ³³ The World Health Assembly and the UN Human Rights Commission, following activist campaigns, urged an interpretative entanglement of the different areas of legal regulation. The discursive entanglement provided for the concepts and (legal) arguments to become part of negotiations where they had not been so before. The ‘cuts’ of liberal law around jurisdictions and the limited reach of liability, including temporally (and regarding the ‘rights’ of future generations), are thus contested; different fields of interaction and regulation are purported to be inseparable. In this contestation, claimants draw upon hitherto unrelated norms from various bodies of law and connect them in a ‘situation’. In this situation, the distinctions between different bodies of law and between moral and legal norms are dissolved. What emerges is interlegality.Footnote ³⁴ Interlegality, in the understanding of Santos, does not denote hybrids, but rather the mutual informing of different norms and normative orders, through which novel forms and meanings emerge.

15.5 Is This Entanglement?

We might debate at what point norms originating in different legal systems or different bodies of law are truly entangled. References to other norms and laws, which ‘are not heard’ and do not affect the way a case is interpreted in the last instance, or do not determine what harms are seen to be at issue, might arguably not actually entangle law. However, as Krisch argues in Chapter 1, entanglement proceeds here discursively, that is by way of the interpretative and argumentative realms that mobilizations of law(s) open up: ‘If we understand law as ultimately socially constructed, a shift in the ways in which actors relate different parts of the legal order to one another reshapes the law itself’.Footnote ³⁵ The actors that need to be taken into consideration are not only judges, Krisch insists:

To return to the idea of legal trouble that Susanne Baer proposes:

One might thus argue that norms inform each other not only when incorporated into the effective normative legal realm through adjudication and the legal reasoning of judges,Footnote ³⁸ but also when rejected in courts as invalid alternatives. Even when rejected, norms that remain in a dissident or minority position have an effect on the dominant norms that they are set in opposition to. The arguments made to deny their applicability themselves set norms in relation to each other. More importantly, the relational meaning established might be taken up by other struggles, and further imaginative interpretations.

Nonetheless, we can presume that not all actors’ entanglements have the same effect on normative transformations. Judges import norms into legal reasoning in a different manner than the claims of lay people do. Therefore, different pathways of entanglement can be explored for their different normative effects and processes of homogenization,Footnote ³⁹ standardization,Footnote ⁴⁰ pluralization or coherence.

15.6 Counter-Entanglements

This is therefore not the end of the story. When local social struggles against multinational corporations succeed either in winning their cases, or in obliging their governments to regulate corporations’ activities more strictly, the conflicts today often shift to arbitration between the corporations and host states on the terms of the investment regimes that host states have concluded with the home states of the corporations in question, or their national investment laws. In Ecuador, for example, after the civil lawsuit against Chevron, in the so-called ‘oil dumping’ case about the devastating pollution in relation to Texaco’sFootnote ⁴¹ operations in the Lago Agrio oil field, was won in all instances, the international arbitral tribunal in the dispute between the government of Ecuador and Chevron obliged Ecuador to pay compensation for damages to the company’s reputation on grounds of the US–Ecuador Bilateral Investment Treaty. The arbitral tribunal also ordered Ecuador to quash the earlier Ecuadorian court ruling.Footnote ⁴² The tribunal held that the plaintiffs should be prohibited from filing any further class actions against the group.Footnote ⁴³ Affected persons should only be able to file individual claims for damages. Furthermore, the arbitral tribunal suggested that Ecuador should see to it that the plaintiffs did not file lawsuits in other countries where Chevron has subsidiaries.Footnote ⁴⁴ Pablo Fajardo, the chief lawyer in the Chevron case in Ecuador, presented a document at a lecture in Bern in October 2019 showing that the Ecuadorian Attorney General’s Office had asked the courts in Argentina, Brazil and Canada to stop dealing with the cases there, and deny the plaintiffs the possibilities to collect the Ecuadorian judgement.Footnote ⁴⁵ The General Prosecutor’s Office thereby hoped to minimize the amount the Arbitration tribunal would allow Chevron to request from Ecuador.Footnote ⁴⁶

As well as being prohibited from filing suits against the company, Ecuador was also required to pay all outstanding debts it had accrued through such arbitration cases in order to be eligible for a loan from the IMF.Footnote ⁴⁷ The government is apparently willing to comply with all of these requirements. Furthermore, when the bilateral investment treaty with the USA was terminated in 2018, Ecuador adopted its own investment law (Ley de Fomento Productivo), which provides that disputes arising out of investment agreements are to be resolved through arbitration, and arbitral awards arising therefrom are immediately enforceable in Ecuador, without the need for any further recognition by the courts.Footnote ⁴⁸ The government repeatedly warned those organizing public consultation meetings on international mining projects, such as those in the Los Cedros case described in Section 15.3, that if such consultations succeed in preventing mining, corporations would likely bring further disputes against the Ecuadorian government in international arbitration tribunals.Footnote ⁴⁹ The costs would be borne by all citizens.

This could be said to be the counter-entanglement to the entanglements from below in transnational relations. It might be considered to fall under the third pathway of entanglement identified by Krisch: coercion. ‘Today, for example, the adoption of World Bank rules on resettlement in the context of infrastructure programmes on the part of borrowing states is often a matter of conditionality and necessity rather than persuasion or attraction’, he writes in Chapter 1.Footnote ⁵⁰ In this particular case, and this holds for many others, coercion forced the entanglement of particular norms, counteracting other entanglements. Here, in several steps culminating in the conditionalities of the IMF, but significantly moving via the bilateral investment agreement between the USA and Ecuador that was, upon termination, immediately followed by the new investment law, Ecuador’s environmental law, human rights law ratified by Ecuador, its trade law and even its administrative law are entangled.

Such coercive entanglements set the contexts for entanglements from below; they limit the possibilities of entanglements and drive them to strive for a trans-systemic coherence, so as to make binding norms for more powerful opponents, thereby limiting the latter’s possibilities of forum shopping.

15.7 From the Particular to the Singular?

Beyond the different pathways of entanglement there is, it seems, yet another response to the protesting entanglements from below. This points neither towards plurality finding a form nor towards greater coherence, but in an entirely different direction: beyond its effects on normative developments ‘within’ systems of law, the entanglement of law created by appeals to other norms might actually lead to cases being treated increasingly as singular, that is, with regard to their unique constellation rather than how they relate to general norms (regardless of which system they might stem from). Rather than entanglement leading to closer and more systematic relations between legal systems, entanglement might actually support – possibly inadvertently – another tendency in litigation, namely ‘singularization’.

We observe that the legal struggles against multinational corporations that cross jurisdictional boundaries in seeking to attribute responsibility for harm that occurs in relation to these companies’ economic activities are rarely adjudicated but tend rather to be settled out of court, if they are not simply dismissed beforehand.Footnote ⁵¹ As in many such litigations, in the Monterrico case analysed by Angela Lindt, an out-of-court settlement was reached three months before the trial date. Claimants had sued the British mining company Monterrico and its Peruvian subsidiary Rio Blanco Copper for human rights violations in relation to a protest against the mine, in which twenty-eight people were arrested. The claimants sought damages for the involvement of Monterrico and Rio Blanco personnel in the violence perpetrated against them during the three days of detention, as well as for the material support provided to the police, and the companies’ failure to prevent police violence. In a way that was reminiscent of Union Carbide case in Bhopal and many others, Monterrico did not admit any liability, but agreed to pay compensation to the plaintiffs. In return, the plaintiffs withdrew their complaint by accepting the compensation and waived the need for a judgement on whether the parent corporation bore any responsibility.Footnote ⁵² The exact content of the settlement and the precise sum of compensation were not disclosed, and the plaintiffs were obliged not to make them public.

Settlements concentrate not on what is specific to a case and how that specificity might be related to a general norm. Rather, cases are treated as singular, as concerning a singular relationship between the parties involved; they need not have any comparable aspects with others, and if they do, these need not become an issue in the negotiations leading to a settlement.

Since the settlement prevents a ruling on the question of whether a corporation actually is at fault and thus bears legal responsibility, it cannot be used as precedent in comparable cases.

In fact, comparability is made irrelevant, as the settlement is a private agreement between the two parties involved in the particular case, a fundamentally unrepeatable situation.Footnote ⁵⁴ Occurrences of harm turn from being ‘cases’ to being singular ‘incidents’, and the very legal entanglement created by the references to various norms that might possibly be relevant is dissolved in these cases, which are treated as private negotiations between the involved parties.

This prevention of precedent and, with it, a settled body of law that could be entangled with other such settled bodies of law is facilitated by the fact that settlements such as the one in the Monterrico case are conducted in private and as matters of private contract law. Even if we learn on what terms the settlement was reached, that is, what arguments about duties and responsibilities came to bear on it, it has no relevance for other cases because it is a private agreement that holds only for that specific constellation of actors and the claims which they make on each other. The parties involved are free to agree over which norms come to bear on the settlement. The privacy of the agreement can ‘convert […] the accountability of the perpetrators into a private matter’.Footnote ⁵⁵

When the parties involved are furthermore obliged to keep the outcome secret, settlements and the norms that are activated within them are entirely removed from public view. Thus, singularization proceeds in several ways: the avoidance of a judgement about fault relating the case to a general norm, the private agreement between the parties involved and secrecy. Everything prevents the case from being a precedent, or simply an example or model, for others; by making comparability irrelevant, entanglement, too, is inhibited or at least left suspended.

The privatization inherent in such settlement negotiations thus introduces new ‘cuts’ in Strathern’s sense, cuts around a single constellation of actors brought together by the specific legal limitations regarding legitimate claimants in the event of a harm. Even when settlements include compensation payments to collectives, or compensatory action in affected regions, the limitations of who can actually be a party to a settlement are decided by as yet unentangled law, as I mentioned earlier in this section. The question of who is to be considered ‘involved’, that is, who is a legitimate plaintiff, is most often determined according to the conventions of the jurisdiction where the corporation has its headquarters – its home country. As I briefly discussed in Sections 15.2 and 15.3, liberal law tends to rely on comparatively narrow conceptualizations of the reach of liability and likewise of identifying those who are affected, particularly in cases related to human rights, because of the concentration of human rights on specific violations of individual rights.

The avoidance of precedent, one could say, responds to entanglement by actively making the comparability of cases irrelevant. Singularization disentangles cases from the systematicity of law and redirects the hopes that had once aimed at ‘justice’Footnote ⁵⁶ towards individual remedy. The fact that these cases are settled out of court is not directly caused by the entanglement of law so much as triggered by the arguments and claims of the plaintiffs. They are settled out of court for various reasons,Footnote ⁵⁷ foremost among them the many obstacles that stand in the way of plaintiffs successfully suing multinational corporations, such as the high costs and long durations, time limitations and jurisdictional limitations. It is commonly argued that such alternative forms of dispute resolution in fact particularly benefit those plaintiffs who cannot afford long and expensive court procedures. Settlements lessen the costs of procedures and make restitutive measures more accessible for the victims, and because they do not need to spend their efforts on attributing fault, can ameliorate suffering more effectively.Footnote ⁵⁸ However, they often do not bring about a judgement about where fault lies, nor do they produce a precedent, the two issues which are often central to the plaintiffs’ hopes, their ideas of justice and their desire for preventive signals.

We have here another form of the proximity-distancing dynamic Krisch describes in Chapter 1: the ‘distancing’ entailed in singularization not only preserves or increases the distance between different bodies of law or among different systems of law. Rather, it creates a distance between cases, so that cases cease to be ‘cases’ exemplary of a general type, but become unique, that is singular. Singularization is thus a specific form of distancing, possibly the most radical one, in as much as singularization does not preserve an earlier distance but introduces a new logic. This new logic concerns not merely the relation between different laws, but the idea of law in itself. Law ceases to operate by subsuming specific instances under a general principle, valid beyond the specific parties to a legal dispute, and turns into a tool of mediation.

Singularization thus not only prevents precedent but also makes the development of tertiary norms unnecessary, because it circumvents rather than regulates the interface.Footnote ⁵⁹ A different logic emerges, one that develops neither systematicity, nor modes of dealing with normative pluralism, but rather entails a radical singularization where common ground can be found only in procedural norms at best. The paradox is that entanglements engendered by strategic comparisons across legal systems and bodies of law increase attention to the singular.

15.8 Plurality, Singularity or Coherence: Towards a Conclusion

Entanglements of law initiated by struggles for fairer relations, be they fairer trade relations, fairer labour relations, fairer distribution of the costs of climate change or a fairer attribution of responsibility in incidents of violence, not only bring into closer proximity norms originating in different legal systems or bodies of law, they also challenge the boundaries or cuts that current law establishes along the chains of distributed agency and around different fields of practice and interaction. These mobilizations aim to overcome the cuts established by current legal instruments, even the ones they are mobilizing, and to articulate new forms of (legal) relations that reflect the interdependence of different fields of social practice within the (global) chains of action. They are anti-pluralist in that they strive for trans-systemic coherence.

Krisch explains in Chapter 1 that entanglement is precisely not synthesis; it stops short of integration. I argue that, indeed, integration in a systemic sense is neither the goal nor the effect of entangling mobilizations of law from below. These mobilizations of law from below are not concerned with systematicity in the sense of an intra-systemic logic, and probably too fragmented and case-bound to produce it.

Nor are these movements much concerned with finding ways to accommodate the existing legal pluralism so as to avoid conflicts of law. There are indeed many struggles that strive for the possibility of pluralism, also struggles that mobilize law from below. Rachel Sieder, for example, has described the struggles for ‘legal sovereignty’ of the Maya in Mexico.Footnote ⁶⁰ Such struggles for legal sovereignty, and for a realm of autonomy in legally plural situations, are, however, movements of ‘distancing’ rather than entanglement. They can mobilize liberal law because it provides for the recognition of some forms of plurality, such as those based in legal categories like indigeneity.

The entanglements produced by the mobilization of law from below I consider here do not strive for such accommodations of pluralism. In fact, they are often at base anti-pluralist, in that they produce novel relational meanings, thereby moving towards a trans-systemic and, at the same time, unsystematic coherence. In their position of relative weakness, they entangle law simply because they need to make use of any norm that might provide them with benefits. It is beneficial for them if all laws providing their claims with legal arguments, no matter where they stem from, are applicable to their situation. They need to strive for the normative amalgamation that comes to bear on their case to be binding for their opponents, and thus for its trans-systemic (trans-jurisdictional) validity. Hence, I argue that these entangling mobilizations of law from below strive for coherence. Such coherence is trans-systemic inasmuch as it refers to norms from various normative orders. It is unsystematic in the sense noted earlier in this section, not being concerned with systematicity, but rather with coherent relationality.

The vision of coherence that comes to the fore in these hopeful mobilizations of law leaves behind the systemic character of individual legal systems; it transcends global legal pluralism, and articulates a more universal notion of the coherence of law. These mobilizations claim that different norms, such as those of trade agreements or environmental conventions and those of civil or human rights, are intricately related to each other, inseparable even. This is a kind of ‘legal holism’, an approach to law that attempts to counteract the differentiation of various legal fields and the borders of different legal systems.

The fact that hopes are placed in the very law that underlies the unequal distribution of rights and privileges might be due to the ‘appeal’ of the norms invoked, their charisma.Footnote ⁶¹ Krisch distinguishes three pathways of entanglement, namely mutual benefit, appeal and coercion. The appeal of norms, as Krisch writes, might arise ‘for their substantive content but also for the aura of progress they come with, the Zeitgeist they represent or the fit they produce with existing commitments. Likewise, the actors creating such norms may appear as appealing – as embodying the right values, as culturally superior, etc.’.Footnote ⁶² Such appeal might of course also indicate the hegemonic sway of liberal law and its power to shape people’s understanding of the world, of themselves and of their aims and conflicts. The question of whether an alternative imagination of the world is possible within the parameters of existing law has been much debated. I have argued elsewhere that when people turn towards legal norms to express their hopes and struggle for their future, they interpret norms in the light of these aspirations – rather than simply in terms of existing normative orders.Footnote ⁶³ Of course, these aspirations are shaped by the normative orders that currently prevail in the historical situation in which they live. More than being simply evidence of the hegemonic power of the existing norms of liberal law, such mobilizations of law from below put forth specific interpretations of rights and entitlements and act upon them in order to shape institutions accordingly.Footnote ⁶⁴ Concepts such as ‘vernacularisation’, as proposed by Sally Merry,Footnote ⁶⁵ or ‘reverse translation’, as suggested by Stuart Kirsch,Footnote ⁶⁶ provide us with instruments to turn this question into an empirical one.

Singularization that proceeds through the privatization of dispute settlement and the move from public courts to private agreements between specific parties runs counter to this. While circumventing rather than resisting the challenges to current legal instruments and norms posed by such entangling struggles, singularization prevents entanglements of law from producing novel legal meanings and thus obstructs legal change. By doing away with precedent, it inhibits the development of normative entanglements that could better reflect current relations of interdependence, position anew the various actors concerned in them and respond to the enabling mechanisms that produce the conditions that make harm possible.

Singularization does not revert the extensions of jurisdictions, nor does it refute the plurality of normative possibilities. It rather proceeds in a different way, namely by making comparability irrelevant, and relationality obsolete; the very idea of normative coherence that drives hopes in law is circumvented, and cases claimed to be equal to others are dissolved into the singular relationships among parties to the individual agreement. Singularization is a form of distancing that keeps not only different bodies or systems of law apart, but even individual cases.

If hope in law is hope in the coherence of law in the sense of the promise of the applicability of norms to one’s concerns irrespective of jurisdiction, the tendency to singularization does not bode well for it. Time and again the argument has been made that law operates for the ‘haves’ not merely because of its substantive content, but also because of the advantages the haves possess in negotiations.Footnote ⁶⁷ We see here that the two are related, that is, that the substantive content, and above all the distinctive ‘cuts’ of current law, are protected by the turn to settlement, which prevents change. There is no hope in singularity.

16.1 Introduction

The entanglement between legal orders is a topic that legal theory has, until very recently, widely ignored or marginalized. For a long time, legal theory happened in the singular: it was mostly a theory of law, not a theory of laws. The object was one law, not many – whether that one law was confined and contingent (as in legal positivism) or all-encompassing and universal (as in natural law). In such a singular theory of law, relations between legal orders are ignored because, by definition, a multitude of laws is not conceptualized. Or, at best, multiple laws are subsumed, somewhere, under one ultimate law.

Such a multitude of legal orders is a theme of legal pluralism, a conceptualization of law as plural that has been discussed not only in legal anthropology and sociology but also in legal theory. Here, entanglement is recognized, but it is often not sufficiently theorized. In legal sociology, the interrelation between legal orders is often conceptualized as interlegality, a rather vague concept that obfuscates more than it actually explains.Footnote ¹ In legal theory, attempts have been made to conceptualize entanglement, and some of these are discussed in this chapter. However, there is a wide disparity of views. Some discuss entanglement as a matter of social fact, others as a matter of legal ordering. Some discuss entanglement from a neutral perspective, others view it from the perspective of peculiar legal orders, some as both. Some authors discuss a plethora of mechanisms to reduce conflicts between legal orders, or to organize interactions, or the like. But it does not always become clear what holds these mechanisms together and what keeps them apart. What we lack is an overarching conceptualization of these mechanisms.

This chapter suggests that these mechanisms should be understood as a peculiar type of legal rules. These rules are different from primary rules because they do not provide commands, dos and don’ts. They are also different from secondary rules because they do not determine issues of validity and valid change of a legal system, at least not in the way in which we traditionally understand secondary rules. Instead, they are a different type of legal rules I propose to call tertiary rules. Tertiary rules are rules with which one legal order designates, relative to itself, the normative space of another legal order to which it is not hierarchically superior. In an earlier publication, I discussed a special case of these tertiary rules, namely the rule of external recognition.Footnote ² In this chapter, I generalize the concept.

Tertiary rules are an element necessary for the development of a concept of laws instead of law. The argument for a concept of laws rests on the conviction that a proper understanding of global law is neither monist or pluralist but instead must transcend the difference between monism and pluralism. That global law is differentiated into distinct legal systems, which interrelate and organize their interrelations through tertiary rules. Such tertiary rules therefore presume that legal systems are at least partly autonomous from each other, but at the same time they also make such partial autonomy possible.

The argument rests on a number of assumptions. These assumptions are not self-evident and will require justification at some point, but here is not the right place to demonstrate why they are justifiable, and so I ask the reader to accept them, for the purpose of this argument, as given.

The first assumption is that global law is both one and many at the same time.Footnote ³ Global law is many in the sense that we have many separate legal orders, state and non-state, and we do not have a comprehensive meta-law that brings them all together. Global law is one in the sense that none of the many separate legal orders really exists in isolation from the other: they interrelate with each other, and none of them can be fully explained without regard to the other. In this sense, entanglement is a universal condition of law.Footnote ⁴ If this is so, then legal theory must change from a concept of law to a concept of laws, from a concept of law as essentially one to a concept of law as one and many at the same time. For this concept of laws, traditional legal theories, whether monist or dualist, are useful but insufficient.

The second assumption is that legal systems are separate from each other. This has become a minority position within pluralist theories of global law. Such theories often emphasize that borders between alleged systems are blurred, or that transnational law does not allow for such borders altogether.Footnote ⁵ In fact, there is a fascination with hybrid spaces that transcend borders. This is not the place to demonstrate comprehensively the assumption of this chapter in favour of separate legal systems, but two remarks may be helpful. First, the observation that borders are transcended is often a sociological and not a legal observation. As such it is important but not novel: it is a core insight of empirical legal pluralism that legal rules of different origins not only overlap but are also frequently mixed. But such sociological observations are of limited use for a legal theory that looks at the operation of legal rules. Second, the assumption is not that legal systems are natural entities to which the law only responds. In fact, the separatedness of legal systems is in no small part itself a creation of law, and most importantly by tertiary rules. Tertiary rules thus do not only respond to, and organize, a world of separated legal systems, they are themselves involved in the creation of such a system.

This last argument has already alluded to the third assumption, namely that entanglement between legal orders is organized by law.Footnote ⁶ Law organizes its own plurality through its own rationality: it is inadequate and incomplete to describe entanglement solely in extra-legal ways (just as it would be inadequate and incomplete to describe, for example, contractual relations solely in extra-legal ways). In this sense, the theory is a positivist theory: it assumes that not only the definition and the creation of law but also the way in which legal orders relate to each other are themselves operations by the legal system.Footnote ⁷ To this extent, the concept of laws is autopoietic. However, in emphasizing that legal systems mutually constitute each other, the concept also includes an allopoietic aspect. While the law at large is autopoietic, individual legal systems are not; they constitute each other through mutual recognition. There may, of course, be other theories of law to describe legal entanglement, and it may even be the case that a positivist theory does not explain all aspects of entanglement – though it seems that positivist approaches to global law, which had fallen somewhat out of fashion, are becoming more defensible in recent times.Footnote ⁸ But, I would argue, any theory that is entirely non-positivist – that is, a theory that does not account for the fact that entanglement is organized in legal ways – is necessarily incomplete.

The fourth assumption is that this ordering takes place in a heterarchical way. This is the kind of ordering that presents the greatest challenge to legal theory. Where entanglement takes place between legal orders that are in a clear hierarchical relation, entanglement is relatively simple, because it is simply organized by the hierarchically superior order.Footnote ⁹ However, in many cases, entanglement takes place between legal orders none of which is clearly hierarchically superior to the other and therefore able to determine, with binding force for the other, how the entanglement is organized. It is in these heterarchical situations where we must understand and explain the way entanglement is organized.

16.2 Cross-Border Normativity

16.3 Three Strategies for Cross-Normativity

Such cross-normativity is difficult for legal theory to conceptualize. In this section, I look at three types of responses to the problem, hoping to cover a wide array of existing responses without having to address, or even name, each individual response. A first set of attempts denies that foreign law is law. A second set of attempts denies that foreign law is foreign. A third set of attempts, finally, denies the interrelation of laws.Footnote ¹⁷

16.4 The Answer of Tertiary Rules

It is proposed that a better way to account for relations between legal orders is the concept of tertiary rules. Tertiary rules share characteristics with secondary rules insofar as they do not constitute commands; instead, they serve to identify the processes by which the applicable commands can be recognized. This is why several scholars, beginning with Hart himself, have viewed them as extensions of secondary rules.Footnote ³¹ They differ from secondary rules in one significant way however: they determine the scope of foreign, not domestic, law. Ignoring this crucial difference leads to significant and consequential misunderstandings.

I am not the first to propose such a concept – my tertiary rules share certain characteristics with Nico Krisch’s interface norms and with Detlef von Daniels’ linkage rules.Footnote ³² Even the term tertiary rules has been used before: Joel Trachtman has used it to account for rules that ‘allocate authority among constitutions: among state constitutions, between state constitutions and international organization constitutions, and among international organization constitutions’.Footnote ³³ But the concept is not yet, I think, sufficiently precise. In the following I try to develop a precise concept of tertiary rules, and discuss in what ways it differs from the other projects mentioned.

A definition of tertiary rules is not easier than a definition of secondary rules, but here is an attempt: Tertiary rules are rules with which one legal order designates, relative to itself, the normative space of another legal order to which it is not hierarchically superior. This definition requires explanation, which takes place here. Perhaps more importantly, it requires application and examples, which will take place in Section 16.5, where three different types of tertiary rules are explicated at somewhat greater length.

16.5 Examples of Tertiary Rules

All of this has been quite abstract. Some examples will hopefully both demonstrate that tertiary rules actually exist and will clarify the abstract concept. That most of these come from the discipline of private international law should not be surprising: private international law is the discipline specifically focused on cross-border normativity. But no claim is made that all tertiary rules belong to private international law.

16.6 Conclusion

In this chapter I have argued that some rules that exist in legal systems cannot be understood as either primary or secondary rules but constitute a different type of rules, called tertiary rules. These are the rules with which a legal system organizes its own relation to other legal systems and also designates those other legal systems’ normative space with regard to itself. Those rules have proven to be more complex than primary and secondary rules, and incompatible with certain postulates of traditional theories of legal systems that emphasize internal coherence and consistency. They are the consequence of a plural world in which law is not one but many.

Recognizing tertiary rules is thus necessary for a pluralistic theory of laws. However, the recognition of tertiary rules is not dependent on the recognition of such a theory. Tertiary rules are an actually observable category of rules within legal systems. This chapter does not invent them, it merely brings them together and describes their qualities. If anything, therefore, a pluralistic theory of laws is a necessary consequence of the recognition of tertiary rules which do not have a proper space in monist theories of law.

Regardless of such a theory, the concept of tertiary rules ought to be of both theoretical and practical interest. Theoretically, they represent an important category of rules and are instructive for the way in which such rules operate across borders. Practically, they help see commonalities between rules in different areas of law. And they help see differences from other rules, like rules of unilateral restraint, or from non-legal mechanisms to resolve normative conflicts. They thereby also provide ammunition against those who claim that conflicts of laws cannot be resolved except in extra-legal ways. The recognition of tertiary rules demonstrates that law is more varied and therefore more flexible that one may think on the basis of monist legal theories.

An outpouring of writings on global or transnational legal pluralism has occurred in the past two decades. Despite its apparent popularity, however, it suffers from deep conceptual problems. After reviewing two decades of this proliferating literature, jurisprudent William Twining remarked, ‘I have come away feeling that it is little better than a morass’.Footnote ¹ This chapter is an attempt to clear up the morass. Three complicating factors bear mention at the outset. First, ‘pluralism’ is a capacious term that simply means two or more and can be applied to law in a multitude of ways. Second, ‘law’ is a contested notion that has been conceived of in numerous ways. Third, legal pluralism has been invoked in a variety of fields with very different orientations and objectives, including legal anthropology, legal sociology, postcolonial studies, law and development, human rights, comparative law, international law, transnational law and jurisprudence. The confluence of these factors has resulted in a tangled conceptual mess.

With these preliminary comments in mind, I address a series of central issues bearing on global/transnational legal pluralism (labels used interchangeably). The first several parts of this chapter critically examine certain prominent positions in global legal pluralism, showing why they are problematic, after which I construct an alternative account that avoids these problems. First, I demonstrate that, contrary to current accounts, global legal pluralism is not continuous with earlier versions of (postcolonial and sociological) legal pluralism; these are three completely distinct paradigms. Next, I expose the flaw of overinclusiveness that has plagued theoretical conceptions of legal pluralism from the outset and reappears in global legal pluralism, particularly in the work of Paul Berman. Then I show why theoretical concepts of law cannot solve this flaw, which ultimately led John Griffiths – the foremost champion of legal pluralism – to repudiate the notion. I then address the profusion of private and hybrid regulatory forms on the domestic and transnational levels, and I mark the line between theory and practice. Thereafter, I expose problems with the relational concept of law formulated by Ralf Michaels, showing why it is unsuitable for many situations of legal pluralism. These critical examinations lay a basis for the constructive account that follows. The approach to legal pluralism I articulate involves social constructions conventionally identified as law that vary and change over time, which can be grouped in terms of three categories: community law, regime law and cross-polity law. Finally, I set forth a handful of specific lessons for a reconstructed transnational legal pluralism.

17.1 Three Distinct Paradigms of Legal Pluralism

It is common to characterize attention to legal pluralism as three successive waves building on earlier work: first came attention by anthropologists to postcolonial legal pluralism, then attention by sociologists to legal pluralism in every society, then attention by jurists to global/transnational legal pluralism. Global legal pluralist Ralf Michaels observed:

This narrative of continuity is reinforced by frequent references in the third approach to major theorists and theories within the second approach, prominently including John Griffiths (anti-legal centralism, strong versus weak legal pluralism), Eugen Ehrlich (living law of social associations) and Sally Falk Moore (semi-autonomous social field).

This narrative, however, is misleading. Other than being about ‘law’ (though in different senses) and shining the spotlight on ‘pluralism’ (albeit in different senses), these three approaches have little in common. John Griffiths, the leading proponent of the second approach, pointedly rejected the first approach. He labelled postcolonial legal pluralism ‘weak’ because it involved recognition by the state of customary law, which Griffiths construed as merely reinforcing legal centralism. ‘“Legal pluralism” in the weak [postcolonial] sense has little to do with the concept of legal pluralism which is the subject of this article’,Footnote ³ he declared, sharply distancing his sociological conception from studies of postcolonial law.

Griffiths’ essay centres on ‘strong’ legal pluralism – ‘an empirical state of affairs, namely the coexistence within a social group of legal orders which do not belong to a single system’.Footnote ⁴ This legal pluralism is based on a sociological concept of law, which encompasses the normative ordering of social associations and institutionalized rule systems generally (more on this shortly). As Sally Engle Merry noted three decades ago in her astute overview of legal pluralism, which boosted its academic profile, these two contexts of legal pluralism ‘make odd companions’ in that they have different targets and ‘they come out of different scholarly traditions’.Footnote ⁵ In Kuhnian terms, this is a revolutionary paradigm shift, not a cumulative building on previous insights.

Comparative, international and transnational legal scholars who came to legal pluralism changed the subject yet again, in multiple ways. Contemporary global/transnational legal pluralism is the product mainly of jurists who focus on public and private systems of law and regulation between and across states, giving rise to multiple coexisting regulatory forms with potential application in various contexts. Constitutional pluralism of the European Union involves the pluralism of coexisting, intertwined official systems of national and EU law; international legal pluralism (or fragmentation) involves a pluralism of different subject matter regimes and tribunals within international law. None of this resembles postcolonial legal pluralism or sociological legal pluralism.

The characteristic feature of postcolonial legal pluralism is the coexistence of bodies of law with profoundly different norms and processes – mainly state law, and customary and religious law – operating independently as well as intertwined in various ways. A report issued by the World Bank legal department observes:

Many manifestations of customary law involve the application of informal (unwritten) legal norms by chiefs or village elders, with the participation of members of the community, oriented towards resolving the matter, taking into consideration not just the individuals and specific incident involved, but also broader social relations. In contrast, state law involves transplanted, formal legal norms applied by legal officials within legal institutions utilizing technical legal terminology and processes.

What stands out about postcolonial legal pluralism is not the multiplicity of law per se, but rather the stark contrasts and sheer diversity between the coexisting bodies of formal and informal law derived from different traditions involving fundamentally different world views (in certain respects incompatible), reflecting highly fragmented societies (ethnic, religious, urban/rural, educated/illiterate, commercial developers/subsistence farmers, etc.). Compare this with discussions in the global/transnational legal pluralism literature of the interaction between EU law and national law, the TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement, lex mercatoria, human rights, World Trade Organization (WTO) law and the Appellate Body, Codex Alimentarius, UNIDROIT, lex sportiva and so forth. What stands out about the latter group is the burgeoning multiplicity of transnational legal and regulatory regimes, many tied to the expansion of global capitalism. While these norms and bodies of law may conflict in various ways, they are virtually all Western derived and they involve formal written regulatory regimes and tribunals operating in standard ways familiar to jurists.

The point, again, is that these situations of legal pluralism have very little in common. The claim of continuity between the first (postcolonial) and third (global) approaches to legal pluralism trades on two distinct connotations of pluralism: diversity and multiplicity. The former is fundamentally about legal diversity while the latter is about legal multiplicity. The former is largely the product of legal anthropologists exploring the various social consequences of these contrasting coexisting bodies of law; and most of these works are not juristically oriented. The latter largely involves academic jurists – many of whom are Europeans grappling with the interaction between EU law and national law – focusing on harmonization, reconciliation, assimilation, discussing choice of law and conflicts of law, jurisdiction and the like.

The differences between the second (sociological) and third (global) approaches to legal pluralism are also substantial – again grounded in fundamentally different orientations and objectives. The second approach was pioneered by sociologists whose goal was to construct a science of society around a sociological concept of law. A scientific positivist, John Griffiths was explicit about this objective:

Griffiths believed that (strong) legal pluralism follows directly from a sociological conception of law, and thus (strong) legal pluralism provides a basis for the sociology of law.

Among global/transnational legal pluralists, Gunther Teubner early on constructed legal pluralism in terms of a science of society (taking off from Griffiths and Sally Falk Moore), applying his autopoietic theory of law as a communicative system to transnational law,Footnote ⁸ advocating that ‘legal pluralism needs to shift emphasis and focus on the fragmentation of social reproduction in a multiplicity of closed discourses’.Footnote ⁹ A second early theorist of transnational legal pluralism, Boaventura de Sousa Santos, also had a sociological orientation, though from a postmodern perspective that eschewed a systematic science of society.Footnote ¹⁰ However, most contemporary global/transnational legal pluralists are not sociologists engaged in scientific theorizing about law, but are academic jurists largely focusing on, mapping and grappling with the multiplicity of transnational regulatory forms and their various modes of interaction and entanglement.Footnote ¹¹ Owing to these different backgrounds and objectives, what the second (sociological) approach to legal pluralism is about is radically different from what the third (global) approach is about. Understood on its own terms, this latest take on legal pluralism represents yet another revolutionary paradigm change. The only connective link is that global legal pluralists regularly refer to the work of Griffiths, Moore and Ehrlich, derived from the sociological approach. This link, however, gives rise to irresolvable conceptual difficulties and disputes and should be discarded for reasons I explain in Sections 17.2 and 17.3.

William Twining, who has written extensively about globalization as well as about legal pluralism,Footnote ¹² found that ‘the many extensions and applications of the idea of legal pluralism to new phenomena and situations are so many and so varied that it is difficult to construct a coherent answer to the question: what is the relevance of classical studies of legal pluralism to the emerging field of “global legal pluralism”?’Footnote ¹³ My point is that any relevance is minimal.Footnote ¹⁴

17.2 The Overinclusiveness Flaw

In her 1988 overview of legal pluralism, Sally Merry flagged a conceptual flaw of sociological legal pluralism that has reappeared in global legal pluralism in the writings of Paul Berman. Merry remarked, ‘Where do we stop speaking of law and find ourselves simply describing social life? Is it useful to call all these forms of ordering law? I find that once legal centralism has been vanquished, calling all forms of ordering that are not state law by the term law confounds the analysis.’Footnote ¹⁵ The sociological conception of legal pluralism construes the normative ordering of social associations (like the family) and institutionalized rule systems (like corporations and universities) as forms of law. In Section 17.3, I explain the source of this problem and why it cannot be resolved, but here I flag its appearance in global legal pluralism.

Paul Berman, a prolific contemporary theorist of global legal pluralism, asserts that there is no need to define law. Yet, in effect, he presupposes a conception of law tied to social associations, but without explicitly articulating it.Footnote ¹⁶ Berman identifies law with norm-generating communities: ‘From religious institutions, to industry standard-setting bodies to not-for-profit accreditation entities to arbitral panels to university tenure committees to codes promulgated within ethnic enclaves to self-regulation regimes in semi-autonomous communities, the sites of non-state lawmaking are truly everywhere.’Footnote ¹⁷ (His reference to self-regulation of semi-autonomous communities incorporates Sally Falk Moore’s analysis, which I take up in Section 17.3) Berman has also identified law within the familyFootnote ¹⁸ and ‘in day-to-day human encounters such as interacting with strangers on a public street, waiting in lines, and communicating with subordinates or superiors’.Footnote ¹⁹ These examples reveal that for Berman virtually all normative ordering is law. As a consequence, law is a fuzzy notion and legal pluralism is extraordinarily pervasive.

In a recently published 1,000-plus-page Oxford Handbook on Global Legal Pluralism (2020) that Berman edited, he makes a revealing statement. After acknowledging that global legal pluralism is not really global in reach and not fully pluralist (because he disallows illiberal values), Berman observes: ‘Indeed, given the broad (and often undefined) vision of law embraced by legal pluralists, it is perhaps not properly considered “legal” either!’Footnote ²⁰ Global legal pluralism, under his conception, extends far beyond law to encompass normative pluralism generally. This conceptually confused stance – the source of which lies in sociological legal pluralism – confounds the analysis, as Merry observed three decades ago.

Not only is this understanding of law overinclusive, but global legal pluralism is also all inclusive to an extent that borders on meaninglessness or totalizing ambition. Global legal pluralism apparently purports to encompass all legal orders in the world – local, state, transnational, customary, religious, non-state, etc. – considered together in a vast bottomless bucket. If the assertion is that all legal orders in the world in the aggregate constitutes legal pluralism, it is a true but empty claim; if the claim is that their framework applies to all legal orders in the world considered together or whenever legal multiplicities of any kind arise, it is an audacious claim. Legal pluralism is everywhere, in so many different manifestations and variations that no single framework can capture it all except in the most general descriptive terms.

17.3 The Problem with Sociological and Jurisprudential Concepts of Law

After two decades of forcefully promoting legal pluralism, John Griffiths acknowledged that sociological legal pluralism does not work:

This is a stunning reversal for Griffiths. To renounce a doctrine that brought him academic renown is a testament to his inestimable intellectual integrity. What doomed sociological legal pluralism is the problem of overinclusiveness.

This insurmountable problem is detailed in other work,Footnote ²² so here I present a drastically abbreviated account. Almost all sociological as well as jurisprudential concepts of law involve specifications of function and form (structure). (This is true of all efforts to define social artefacts; for example, a standard definition of a ‘chair’ is a seat (function) with legs and a back (form).) While numerous variations exist, conceptions of law fall into two basic streams. The first stream encompasses the normative ordering of social associations (focused on law’s function) – put forth by Griffiths, who melded Eugen Ehrlich’s living law with Sally Falk Moore’s semi-autonomous social field. The second stream encompasses institutionalized rule systems (a combination of function and form) – put forth by Marc Galanter, who drew on H. L. A. Hart’s union of primary and secondary rules.

The problem with identifying law as the normative ordering of social institutions (the first stream), as Eugen Ehrlich did, including clubs, community organizationsand business partnerships, is that a variety of social mechanisms – customs, morals, habits, reciprocity, etc. – are involved in the ordering of social associations. Defining law in terms of the ordering of associations inevitably encompasses all of this. Jurists at the time rejected his concept of law for this reason. Legal philosopher Morris Cohen objected: ‘Ehrlich’s book suffers from the fact that it draws no clear account of what he means by law and how he distinguishes it from customs and morals.’Footnote ²³ John Griffiths concluded that Ehrlich’s ‘theory therefore lacks an independent criterion of “the legal”. He seems to take it as obvious which sorts of rules of conduct are legal in character.’Footnote ²⁴ Griffiths turned to Sally Moore’s semi-autonomous social field (SASF), declaring: ‘law is the self-regulation of a semi-autonomous social field’.Footnote ²⁵ However, Moore herself refused to use the label ‘law’ (she proposed ‘reglementation’) owing to the same objection: an array of mechanisms support the rule-bound ordering within social groups that her SASF centres on, including moral norms, reciprocity, potential loss of future benefits and social ostracism. Griffiths understood that his conception of law encompasses a broad continuum of normative ordering, from informal to institutionalized, which led him to conclude that ‘all social control is more or less legal’.Footnote ²⁶ This position results in the assertion (per Berman) that law encompasses people queuing at a bar or bank.

The conception of law as institutionalized rule systems (the second stream) is an abstract reduction of state legal systems, presenting law as an institutionalized rule system (form) that enacts and enforces norms for social ordering (function). An influential early work on legal pluralism, Marc Galanter’s ‘Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law’ (1981),Footnote ²⁷ builds on H. L. A. Hart’s account, defining law in terms of ‘the organization and differentiation of norms and sanctions. The differentiation is the introduction of a second layer of control – or norms about the application of norms.’Footnote ²⁸ Since society is filled with institutionalized norm-enforcement systems, it follows that law is ‘found in a variety of institutional settings – in universities, sports leagues, housing developments, hospitals, etc.’.Footnote ²⁹ A century ago, Italian jurist Santi Romano articulated a theory of legal pluralism that takes this line of thinking to its utmost extension, asserting that every institution is a legal order and every legal order is an institution.Footnote ³⁰ Legal orders, in this view, include states, municipalities, corporations, factories, political parties, a prison, a church, a family, a criminal gang and much more.Footnote ³¹ In a recent essay acknowledging legal pluralism, legal philosopher Joseph Raz likewise identifies law in ‘the rules and regulations governing the activities of voluntary associations, or those of legally recognized corporations, and more, including many very transient phenomena, like neighbourhood gangs’.Footnote ³² The legal institutions he has in mind, Raz elaborates, ‘are themselves rule-governed, ultimately governed by practice-based rules that determine if not all at least the most important aspects of their constitution, powers, and mode of operation’.Footnote ³³ ‘In this sense’, he continues, ‘both the rules of the Roman Republic and those of the University of Wales (disbanded 2011), just as the rules of the United States and of Columbia University, are legal systems.’Footnote ³⁴

At bottom, these two streams of conceptions of law involve exercises in relabeling. The first stream relabels the normative ordering of social associations as legal ordering; the second stream relabels institutionalized rule systems as law. Through this relabeling, both approaches immediately produce an immense profusion of law in society. However, their conflation of law with broader social phenomena is theoretically unjustified and results in confusion. Rather than assert that all forms of social control are more or less legal or that all institutionalized rule systems are law, it makes far more sense to assert that multiple forms of social control exist, some of which are law, and that innumerable institutionalized rule systems exist, some of which of are law.

The most straightforward way to identify law from among the multitude of normative orderings and institutionalized rule systems in society is via conventional recognition of what is ‘law’ (droit, loi, lex, ius, recht, gesetz, diritto, prawo, horitsu, fa, etc.) – which I elaborate further in Section 17.7. The legal systems of France and Massachusetts (etc.) are conventionally perceived as law, but not the internal rule systems of Saint Laurent or Harvard (etc.), which are seen as rule systems specific to the purposes of the organization. International law is law, not because it satisfies abstract criteria of legality based on form, function or some other basis (which no theorist has successfully formulated), but because it is conventionally recognized as law by jurists, political leaders and the public.Footnote ³⁵

17.4 The Ubiquity of Private Rule Systems and Regulatory Forms

Transnational legal pluralism scholars have emphasized the ubiquity of private and hybrid regulatory systems operating on the transnational level. Examples include the Court of Arbitration for Sport,Footnote ³⁶ Codex Alimentarius Commission on food standards, voluntary ‘soft law’ provisions like corporate codes of conduct and UNIDROIT Principles of International Commercial Contracts, International Organization for Standardization and an increasing multitude more. The domestic level has also witnessed a proliferation of private and hybrid bodies carrying out legal functions, with the expansion of private arbitration, private policing (gated communities, universities, sports venues, shopping malls, etc.), private prisons (common in the USA) and private standard setting.

The underlying cause of the explosion of private and hybrid regulation is plain: governments and public bodies lack the capacity to produce and carry out the regulatory activities necessary to deal with countless transactions and intercourse within society and across societies. It has long been common for regulatory standards to be produced by private organizations tied to non-profit consumer associations or trade associations in specific industries, which have the requisite expertise as well as an interest in maintaining quality and safety standards (as well as creating barriers to entry against potential new competitors). Domestic and transnational private standard setting are frequently connected. The American National Standards Institute (ANSI), a private organization created in 1918, accredits standards produced by private standard-setting organizations (many of which have been adopted by state regulators) across a broad swath of matters (electrical standards, chemical standards, public health standards, and so forth); ANSI is a member of the International Organization for Standardization as well as the International Accreditation Forum, propagating American standards more broadly as well as introducing externally produced standards into the USA.

In addition, private organizations have long established and enforced their own rule systems on their employees and consumers and users of their goods and services. Twitter and Facebook famously demonstrated this power in the aftermath of the insurrection on the Capitol building when they banned President Donald Trump from using their platforms for repeated violations of their terms of service. Private companies can also directly enforce state law. Google enforces the EU’s ‘right to be forgotten law’, thus far rendering judgements on over 845,000 requests, delisting 45 per cent of the links.Footnote ³⁷ As Galanter made clear four decades ago, a far greater amount of rule enforcement affecting people’s lives takes place within private institutionalized rule systems than through state law, and private regulation has vastly increased since that time at domestic and transnational levels.

These private and hybrid regulatory phenomena are undoubtedly important. The issue for theorists and jurists is how they should be characterized. They carry out legal functions, many are structured like legal institutions and their rules and processes often supplement state law. Based on these similarities, leading transnational legal pluralist theorists have swept these phenomena within law – asserting that they are law or that law is a matter of degree, thereby encompassing these regulatory forms. This approach, however, inevitably results in the overinclusiveness problem identified above (including as law universities, hospitals or corporations). A simpler approach is to call them what they are – private and hybrid regulatory forms – noting the manifold respects in which they are law-like and identifying the various ways in which they interact with law. Rather than hold that all forms of regulation are law, it is more sensible to see regulation as a broad category, certain manifestations of which are law (conventionally recognized as such), while many others carry out legal functions but are not law per se. All the same observations can be made by jurists and theorists without stumbling over irresolvable theoretical hurdles involving the concept of law.

17.5 The Separation of Theory and Practice

The question ‘What is law?’ is almost entirely a theoretical exercise. Judges, lawyers and parties engaged in situations with multiple, coexisting forms of law rarely take up this abstract theoretical inquiry. The issues that typically arise in contexts of transnational legal pluralism mainly include questions like these: which of the various forms of law and regulation are relevant to the resolution of the dispute or problem at hand, how much weight should attach to each, and how should conflicts between them be resolved? These issues are resolved not by abstract theoretical inquiries into the concept of law, but by resort to applicable rules of legal relevance and validity, choice of law, conflicts of law and other standard legal mechanisms and analyses that jurists commonly utilize.

Transnational legal pluralist theorists engender confusion when they cross over the line between theory and practice. Roger Cotterrell asserts that lawyers dealing with transnational law need a theory of legal pluralism; after considering different concepts of law by a number of theorists, he proposes that law involves institutionalized doctrine.Footnote ³⁸ Berman seeks to develop for jurists ‘procedural mechanisms, institutions, and practices that aim to manage, without eliminating, the legal pluralism we see around us’.Footnote ³⁹ But it is doubtful that lawyers need or will utilize theoretical concepts of law and legal pluralism, since they have been dealing with these phenomena for many decades without such theories – and how would they decide which is correct among the many theories of law proposed in the literature? Few, if any, judges or lawyers would find useful Berman’s assertion that law includes people queuing to get into a bar. While it is common for academic jurists to construct frameworks for lawyers and judges, they typically do so working with the same legal materials, analysing applicable doctrines and legal mechanisms from the internal standpoint of a jurist. In contrast, sociological and theoretical concepts produced from an external standpoint – law as institutionalized normative orders, autopoiesis, networks, entanglement, interlegality, the semi-autonomous social field and other theoretical constructs referred to in the literature – have little application in juridical tasks. Theory and practice are different enterprises.

17.6 Flaws of a Relational Concept of Law

Ralf Michaels recently articulated a novel concept of law (or laws) grounded on pluralism as an intrinsic aspect of legal ordering, an account that transnational pluralist scholars have begun to cite.Footnote ⁴⁰ To Hart’s obligatory primary rules addressing social behaviour, and secondary rules used by legal officials to create and apply primary rules, Michaels adds tertiary rules for engaging with external legal orders. Michaels summarizes his definition of law:

He emphasizes that external recognition by other legal orders is constitutive of whether a given legal order is law: ‘Under this theory, translated into legal theory, [external] recognition is constitutive for the identity of law as law.’Footnote ⁴² A given system is not a legal system absent external recognition.

To justify adding tertiary rules Michaels draws an analogy to recognition by other states as the basis for nationhood status under international law. He asserts that ‘effectively a legal system cannot operate vis-à-vis other legal systems unless it is recognized by those other legal systems’.Footnote ⁴³ Thus, legal systems are ‘mutually constitutive’, each becoming law through recognition by the other. This recognition is relative to the interaction between any two systems (hence it is relational). ‘Something can be a legal order vis-à-vis one other legal system, but not vis-à-vis another legal system. The nature of a legal system exists in relation to another legal system.’Footnote ⁴⁴ Since all existing state legal systems are externally recognized by other state legal systems via domestic conflicts of law rules (which are tertiary rules), all state legal systems qualify as law in his definition. For reasons I explain, however, his scheme heavily disadvantages non-state law.

Michaels’ theory of law has three major problems relevant to legal pluralism, which I articulate up front then illustrate with examples. One problem is that a legal system can be highly effective within a community regardless of whether any external legal system recognizes it, and indeed even when its legal status is affirmatively denied by other legal systems – which is a common occurrence in the history of legal pluralism. Since the vast bulk of what legal systems typically address relate to internal effectiveness, Michaels does not explain why a lack of external effectiveness – which it can function without – justifies the conclusion that an internally effective system is not law. A second problem is that a system can go from being not law until receiving external recognition, then becoming law upon recognition, then not law when recognition is withdrawn, then law again when recognition is restored (and so on) – with its legal status dictated entirely at the whims and interests of the external system (an example follows).

The third problem is a conceptual flaw within the relational theory itself. If a necessary element to qualify as law is external recognition by another legal system, as Michaels contends, then that in itself does not necessitate tertiary rules within the system to establish relations with others. As long as another legal system recognizes it, a given legal system exists even if it does not recognize any other legal system on its part. Since external recognition in his scheme is not conditioned upon reciprocal recognition, there is no logical basis in his theory for requiring tertiary rules within a given system as a necessary feature of law. His account requires only: (1) primary rules of content, (2) secondary rules of operation and (3) receiving external recognition. In Hart’s account, to supplement his union of primary and secondary rules, he identified two minimum conditions for the existence of a legal system: the populace must generally obey the primary rules, and legal officials must accept the secondary rules.Footnote ⁴⁵ Similarly, Michaels’ requirement of receiving external recognition does not itself give rise to a third distinct body of rules, and indeed it is not about rules at all. Instead, what his justification calls for is another existence condition: an external legal system must recognize it as law to be effective.

This conclusion reveals that his tertiary rules are neither necessary nor sufficient to constitute law. Assume System A has primary, secondary and tertiary rules – thus possessing the three features he identifies as essential to law. However, if System B does not recognize A as a legal system, it is not a legal system with respect to B. As Michaels put it, ‘System A can only determine whether and how it recognizes System B and insofar be constitutive for System B. It cannot determine whether and how System B recognizes System A.’Footnote ⁴⁶ So having tertiary rules (on top of primary and secondary) is not sufficient to constitute A as law with respect to B. Now assume System A has primary and secondary rules, but not tertiary rules – thus lacking what he identifies as an essential feature of law. If System B nonetheless recognizes A as a legal system, it does count as law for B. So tertiary rules are not necessary to constitute law. It turns out that tertiary rules, Michaels’ key addition to Hart’s concept of law, are not actually essential to constituting law under his own conceptual scheme.

The conceptual soundness of his theory of laws (positing pluralism and interrelatedness as intrinsic) must be evaluated in terms of whether it makes sense when applied to account for legal phenomena. However, his theory construes law in counterintuitive ways. No system counts as law in isolation or as a general matter because its legal status is constituted only with respect to particular other legal systems that recognize it. It is law in relation to Systems B, C, D, etc., which recognize it, but not law with respect to Systems E, F, G, etc., which do not recognize it. Thus, System A can be law and not law at the same moment (depending on which relation one considers). Moreover, as we just saw, System A’s legal status with respect to Systems B, C, and D, etc., can be turned on and off at the sole discretion of each external system. Michaels extrapolates from the correct proposition that System B alone has the power to determine what counts as law for it (a direct implication of legal rules of validity), but ratchets up the theoretical import of this proposition to be ‘constitutive’ of A’s nature as law (an internal point about System B thereby determines the legal nature of System A). This conceptual move transforms a commonplace idea into a source of multiple puzzling implications.Footnote ⁴⁷

The distorting lens his relational theory provides is evident through application to actual situations of legal pluralism. Consider British treatment of Aboriginal customary law. Upon arrival, they declared Australia terra nullius, with no semblance of law or civil society, a blank legal slate, enabling the colonial government and settlers to seize Aboriginal land because no property rights existed.Footnote ⁴⁸ This stance conceptually erased the reality that Aboriginal communities had lived for aeons, and continued to live, in accordance with customary law on property rights, personal injuries, marriage and so forth. In Mabo v. Queensland (1992), the Australian court finally recognized that Aboriginal customary law indeed conferred pre-existing property rights that must be respected.Footnote ⁴⁹ Aborigines had all along viewed and lived in accordance with their customary law, but according to Michaels’ relational theory, Aboriginal customary law was not law until external recognition by the Australian legal system constituted it as law, putting its status as law entirely at the leave of the state legal system.

Not only does this stance wholly discount the views and legal practices of Aborigines, it twists the court’s inquiry into a logical pretzel. A court in this position is inquiring whether customary law was (or is) a genuine form of law. According to the court, the pre-existing legal status of customary law provides the grounds for its decision, but according to Michaels its legal status follows solely as a consequence of the decision itself. Under his theory, it is not conceptually possible for Aboriginal law to be law prior to recognition, so the court’s inquiry into whether it was law (prior to the decision) is nonsensical.

In New Zealand, after a number of violent skirmishes, the British entered the Treaty of Waitangi (1840) with powerful Maori chiefdoms, acknowledging their right to rule in their home areas, and subsequent statutes were enacted recognizing customary law. But this initial recognition was withdrawn after the rapidly increasing settler population became dominant. In an 1877 case, Wi Parata v. Bishop of Wellington, Chief Justice Prendergast declared the Treaty of Waitangi a ‘simple nullity’, ‘worthless’, because it had been signed by ‘barbarians without any form of law or civil government’ incapable of entering a treaty with a civilized nation.Footnote ⁵⁰ Furthermore, he concluded, the Native Rights Act of 1865 and Native Land Act of 1873, which recognized Maori customary law property rights, were nullities because ‘no such body of law existed’, and ‘a phrase in a statute cannot call what is non-existent in being’; subsequent statutes withdrew recognition of customary law. Only in recent decades has Maori customary law again received recognition by the New Zealand state legal system. Ironically, contrary to Justice Prendergast’s assertion, according to Michaels’ theory, recognition of customary law in a state statute or case does indeed bring previously non-existent Maori law into being – but by the same reasoning the withdrawal of said recognition also extinguishes it. External recognition has a kind of magical ontological power to snap law into and out of existence by declaration, a power wielded by the state legal system, while Maori legal understandings and practices do not matter.

Now I shift from colonial settings to show how the relational theory fails to adequately account for Jewish law and Sharia law in Western legal systems, both mentioned by Michaels. Jewish law recognizes the law of the state, but most state legal systems do not recognize Jewish law as law. In the United States, the decisions of Jewish tribunals (Beth Din) are enforced not as Jewish law, but rather as contractually binding arbitration decisions, no different from contract-based private arbitration generally. From the standpoint of believers, in contrast, these decisions are based on Jewish law. The rules of Beth Din America declare: ‘The Beth Din of America accepts that Jewish law as understood by the Beth Din will provide the rules of decision and rules of procedure that govern the Beth Din or any of its panels.’Footnote ⁵¹ Thus Jewish adherents see two legal systems operating. But according to Michaels’ theory, Jewish law is not law unless state law recognizes it as such, which it refuses to do, so state law is the exclusive form of law as far as it is concerned (enforcing private arbitration grounded in state contract law is not recognition of the status of Jewish law as a legal system, nor does it involve conflicts of law rules). A number of states in the USA prohibit courts from recognizing religious law of any kind. Since state legal systems typically assert a monopoly over law, the consequence of his theory is to disqualify non-state law at the outset, eliminating legal pluralism by automatically granting the monopolistic claim of state law.

The situation of Sharia law is even more problematic for Michaels’ theory. The UK government recently enacted provisions that would give limited recognition (again as arbitration, not law) to decisions by Sharia tribunals that meet specified criteria, but a number of Sharia councils have expressed reluctance to obtain formal recognition under state law, which they consider to be ‘un-Islamic’.Footnote ⁵² In this instance, one form of law rejects an offer of recognition from an external legal system, viewing such recognition as unnecessary and perhaps an insult to its own independent legal status – whereas for Michaels this very rejection disqualifies it from constituting law. Both state law and religious law assert that their law is binding and superior. The direct clash is evident in a fatwa on divorce issued by the Islamic Council of Europe:

State law asserts a parallel position on the opposite side. In February 2020, a British Court of Appeal ruled that a nikah (Islamic) marriage is a ‘non-marriage’ under state law, so no legally cognizable marital rights attach to Islamic marriages.Footnote ⁵⁴ This mutual standoff of non-recognition has significant actual consequences: over half of Muslim marriages in the UK, many of which take place in mosques or private homes, are not registered as civil marriages.Footnote ⁵⁵ Oddly, under Michaels’ relational theory, in the relations between the two, neither is a legal system. This is yet another way in which the relational theory conceptually erases manifest legal pluralism.

The relational theory of law is antithetical to the thrust of legal pluralism for reasons revealed by these examples. Law throughout history and today is the product of recognition within communities that live by and recognize their own forms of law. This holds for the Indigenous law of the Maori, Australian Aborigines and Native American tribes of North America, as well as Jewish law, Sharia law, Hindu law and other forms of religious law, as well as customary law across Africa, Asia and the Pacific Islands, and many other forms of law. To condition their status as law on recognition by an external legal system, the state legal system in particular, denies communities their own agency in determining what counts as law. Michaels asserts, ‘In all but the rarest cases, we will be faced with external recognition from both sides.’Footnote ⁵⁶ This is true among state legal systems, which uniformly recognize one another, but there are many examples past and present of state legal systems not extending reciprocal recognition to customary and religious law.

The examples in this section also illustrate that whether external recognition is extended is not always a matter of comity and respect, but rather is a function of relative power and self-interest. Under the ideal of the monist law state, the state characteristically claims a monopoly over law backed by force of arms. Many forms of community-based law have vigorously disputed this monopolistic assertion for centuries. What Michaels clinically presents as ‘external recognition’ has often involved existential contests in which a state legal system asserts its dominance over community-recognized forms of law struggling to survive.Footnote ⁵⁷ His theory gives the state legal system determinative say over legal status (a common assumption of jurists), while many communities around the globe observing non-state law resolutely insist otherwise. Although he is correct that state law determines what counts as law for its own purposes, this does not, and should not, dictate the status of other legal systems on their own terms.

These objections to the relational theory reinforce a point made earlier. Michaels’ theory of law might fit state law recognition of other state laws through conflicts of law rules (his scholarly expertise), and it might work for transnational forms of law and regulation, but it is not suitable for many contexts of legal pluralism.

17.7 Foundations of Legal Pluralism in Conventional Recognition of Law

It is a commonplace that the social world we inhabit is socially constructed. The social world is the product of our meaningful beliefs, actions and projects, and their intended and unintended consequences. People are born into, assume a place in, partake of and modify existing language, knowledge, social practices and institutions, conventions and technology, generated on an ongoing basis by the community of actors – collectively giving rise to a common social world made up of hospitals, schools, petrol stations, factories, government offices, courts, movie theatres, grocery stores, universities and everything else in society. These are the ubiquitous social phenomena in which we are daily immersed and take for granted. Socially constructed institutions, furthermore, are interconnected within surrounding cultural, social, economic, political, legal, ecological and technological factors, and their existence endures over time (until they expire), developing and changing in relation to exogenous and endogenous factors.

The socially constructed Catholic Church, for example, has changed immensely over its two millennia history. Put in grossly broad strokes: from the claim that Christ designated the bishop of Rome as the head; to the edict establishing Christianity as the official religion of the Roman Empire; to a gradual split between the Western and Eastern churches; to the investiture conflict; to the development of canon law influenced by Roman law; to independent legal authority exercised by the Church across Western Europe on marriage, inheritance, defamation, moral crimes and other matters, alongside regal law, law of the manor, local customary law, etc.; to the Reformation and Counter-Reformation and decades of devastating religious wars; to changing relations with consolidating state systems in Europe and the stripping of ecclesiastical law from authority over the public; to the immensely wealthy Catholic Church today, governing its own affairs, operating its own legal system and ensconced in a sovereign state, Vatican City.

Notice that law and legal pluralism in various respects, evolving over time, have a prominent role in the history of the Catholic Church, interacting with politics, religion, economics and everything else. Accounts of this sort can be provided for all socially constructed, historically enduring, socially interconnected, varying and changing manifestations of law throughout history and today.Footnote ⁵⁸ Whatever people collectively recognize as ‘law’ (and its translations) is law – recognition of legal status that has attached to innumerable instantiations and variations of law over time: European Union law, United Kingdom law, Scottish law, New York municipal and state law, international law, Halakha (Jewish law), Sharia law, Yapese customary law, Adat law in Indonesia and countless more. These manifestations of law cannot be captured in a single concept of law because their functions and features vary and have changed over time. Informal customary law, and international and transnational law, do not have the same structures as state law, which is why Hart, who explicitly based his concept on state law, concluded that they are not fully fledged law, but pre-legal.

To know what law is for the purposes of legal pluralism does not require an abstract concept or definition of law stating essential or defining features – instead one must inquire into what people in a given social arena collectively (conventionally) identify as law.Footnote ⁵⁹ As with any social artefact, this inquiry presupposes a rudimentary sense of what is law (likewise, one must begin with a sense of what a chair is to identify what people collectively identify as chairs). Collective senses of what counts as law – including customary and religious law, state law and others – extend back millennia to a shared Western and Near-Eastern tradition (Hammurabi’s Code, Greek law, Torah, Sharia, etc.). These notions of law have spread around the world through contact, trade, migration and interaction among peoples generally. Colonization spread state legal systems globally through imposition or imitation, as well as entrenched the notion of customary law in many societies, and international law was a companion of colonization, so these forms of law are familiar in every society around the globe today. Translations for law exist in all classical and contemporary languages – often in multiple terms, like ius and lex, and recht and gesetz, all of which count as conventionally identified law – instantly available on Google Translate. In many social contexts today and in the past, multiple collectively recognized forms of law coexist – this is legal pluralism.

The key constitutive factor in particular social constructions of law is conventional recognition within social groups (including groups of legal officials). Conventional recognition determines who counts as legal officials, which specified legal powers they exercise and what they must do for their actions to count as legal.Footnote ⁶⁰ In highly institutionalized formal legal systems this recognition is tied to official positions occupied by legislators, prosecutors, judges, police, etc., exercising roles with attendant legal powers. But a multitude of socially constructed arrangements of conventionally recognized law exist. In many informal customary law systems, village chiefs or elders preside in collective gatherings and render decisions on the resolution of disputes over matters of property, personal injuries, inheritance, property claims, etc. A single version of law can come in many variations across different contexts. For Islamic law, for example, respected Islamic jurists issue authoritative rulings (fatwa) based on the Quran, Hadith (sayings of the prophet Muhammad) and juristic teachings, although they do not operate within official legal systems; in Iran, an Islamic theocracy, judges occupy positions within the state system applying Islamic law; and in Indonesia, informal Adat tribunals apply mixtures of locally infused Islamic law and customary law. In many contexts, collectively recognized official state legal systems and non-state legal systems both operate, and can be potentially invoked by parties, and sometimes international and transnational forms of law can be invoked as well. That is legal pluralism.

17.8 Community Law, Regime Law and Cross-polity Law Juxtaposed

When thinking about situations of legal pluralism, it is useful to keep in mind three roughly distinguishable general categories of bodies of law that have been collectively recognized across many societies, which I descriptively label community law, regime law and cross-polity law.Footnote ⁶¹ (These categories are inductively derived generalizations, not analytically derived.) Community law encompasses basic laws and institutions of social intercourse within communities addressing property, personal injuries, marriage, divorce, sexual restrictions, inheritance, debts and obligations and others; the body of rules through which people arrange their daily affairs. Every society has rules addressing these matters, which vary greatly across societies and change over time. Many existing systems of customary and religious law involve the lengthy continuation of fundamental rules of social intercourse going back many centuries, pre-dating the establishment of state legal systems and evolving to adjust to the presence of the state (and the state to them). Regime laws are laws tied to ruling polities. They constitute, support and enforce the power of the governing regime, including taxation and customs fees, forced labour and military service, laws against sedition, border controls and much more, with governing regimes frequently nested within or encompassing in whole or part other subregimes. Cross-polity laws deal with matters between and across organized polities, consisting of national law (including conflicts of law), international law, transnational law and non-state forms of law that extend across states (like fatwa).

Community law has remained roughly the same in its ambit across place and time. Regime law has expanded enormously in the past two centuries with the consolidation and proliferation of bureaucratic state law and the rise of instrumental lawmaking to address a full range of social, economic and political matters. Cross-polity law has multiplied greatly in conjunction with modern globalization, accelerating in the past half-century to deal with transnational capitalism, transportation, communications, financial transactions, legal and illegal migration, ecological harms and more.

All three categories of law are contained within many unified state legal systems today, though significant exceptions remain. This unification is a recent arrangement. Throughout history, from the Roman Empire to the Ottoman Empire to the British Empire, empires have imposed regime law to maintain imperial interests, while allowing local community-based customary and religious laws and tribunals to address matters of everyday social intercourse. Postcolonial legal pluralism across the Global South today is the continuing legacy of Western imperialism. Large polities that span multiple communities often comprise some arrangement (officially or unofficially) in which pockets of community law continue to function.

Many situations of legal pluralism involve juxtapositions of inconsistent versions of community law, state law and cross-polity law (forms of law from different categories and/or within the same category). In many regions across the Global South, people in rural communities manage their affairs through customary law and tribunals, apart from and often inconsistent with official state laws and tribunals. Disputes over the inheritance of land from a male who dies can involve, on the one side, male brothers of the deceased invoking customary law on patrilineal inheritance (community law), backed by the UN Declaration of Rights of Indigenous Peoples (cross-polity law), to support their claim to the land; while on the other side, widows (with help from non-governmental organizations) may invoke state inheritance law on widow’s shares (state law), backed by the Convention on the Elimination of All Forms of Discrimination Against Women (cross-polity law).Footnote ⁶² Across Asia, subsistence farmers invoke customary land tenure rights (community law), clashing with governments and developers seizing land to establish plantations or commercial projects, who invoke transplanted official property rights and titling systems enacted by states (state law) at the behest of the World Bank and Western development agencies (cross-polity organizations transplanting law). European constitutional pluralism involves the juxtaposition of national law of the states (regime law) with EU treaties and law (cross-polity law); the pluralism of coexisting subject matter regimes in international law (WTO, TRIPS, World Health Organization, environmental treaties, etc.) involves multiple examples of cross-polity law with different orientations and objectives, interacting with the laws of nations (regime law).Footnote ⁶³ Legal pluralism is thus manifested around the globe in myriad variations. In pluralistic contexts it is useful to pay attention to three different directions: (1) at the coexisting complex of legal and regulatory institutions and their interaction; (2) at individuals, entities and groups operating within contexts of coexisting legal and regulatory institutions; and (3) at the broader social, cultural, economic, political and legal consequences of the coexisting legal systems (at the consequences of 1 and 2). In the first direction, one should look at the relative power of each set of legal institutions, and the power and resources of the social, economic and political interests that support or align with each; at the normative commitments and personal interests of the officials who operate within each form of law; and at whether, and how, coexisting forms of law operate cooperatively, competitively or combatively (or all three). In the second direction, one should observe how people navigate legal pluralism for normative and strategic reasons: they may resort to a particular form of law for moral, cultural or economic reasons; they may engage in forum shopping to achieve their objectives; they may pit one legal system against another or enlist multiple systems for support.Footnote ⁶⁴ In the third direction, one should examine the broader cultural, social, economic, political and legal consequences of how the coexisting legal systems interact and how people, entities and groups operate within these contexts. These three directions will expose entanglements between the coexisting forms of law, entanglements between people and coexisting forms of law and entanglements of both with the surrounding interconnected society (culture, economics, politics, etc.). This trifold lens helps expose many of the dynamics at play in contexts of legal pluralism.

17.9 Transnational Legal and Regulatory Pluralism

To conclude, let me briefly state five main implications of the foregoing analysis for a reconstructed transnational legal pluralism.

The first lesson, repeated throughout, is that transnational legal pluralism has little in common with postcolonial legal pluralism (first approach) and sociological legal pluralism (second approach). Rather than look to the earlier literature on legal pluralism and emphasize continuity, which tends to mislead more than illuminate, transnational legal pluralists should embrace the understanding that they are jurists constructing a wholly new paradigm to address juristic concerns relating to proliferating forms of transnational law and regulation (public, private, hybrid).

The second lesson is that transnational legal pluralists should not attempt to build on an abstract concept or definition of law (implicitly or explicitly). Not only is a concept of law unnecessary and superfluous (stated next), but engaging in this theoretical project is a roadblock to progress. Theorists who attempt to base transnational legal pluralism on a definition of law will go in circles with other similarly engaged theorists and no prospect of resolution. Be forewarned by the example of John Griffiths – the most often cited theorist of legal pluralism – who finally abandoned this project because it could not be solved.

The third lesson is that what counts as law for transnational legal pluralism is what communities take for granted as law: European Union law, UK law, individual treaties, national constitutions, international law, human rights, German municipal, state and administrative law, etc. These conventionally recognized manifestations of law are what transnational legal pluralists already discuss. That is why an abstract definition of law is unnecessary. We know what is law because we – jurists, government officials, citizens, native peoples, members of religious communities, etc. – collectively identify them as law. Coexisting clashing conventional identifications of law may exist in given contexts (for example state law and Sharia), but they still count as law when they are seen as such by communities of actors.

The fourth lesson, following directly from the second and third, is that ‘transnational legal and regulatory pluralism’ is a more suitable label for the concerns of global/transnational legal pluralists. The label ‘global legal pluralism’ is misleading and should be dropped, for it is neither global nor exclusively legal. The label ‘transnational legal pluralism’ is problematic because it prompts theorists to explain why what they study counts as law (thereby generating the definitional problem). There is no juristic or conceptual reason to assert that they are law – a superfluous claim that inevitably runs into trouble. Adding ‘regulatory’ to the label immediately dissolves this issue and recognizes that their work encompasses public, private and hybrid regulatory regimes, a significant amount of which is not collectively considered law – which does not diminish the fact that they are important and accomplish a great deal. They are what they are: private and hybrid regulatory forms that carry out and complement legal functions, and frequently interact with manifestations of law. They bear directly on the concerns of transnational legal pluralists and merit inclusion in the label.

The final lesson, already mentioned but worthy of separate emphasis, is that, beyond state, international and transnational law, many communities also collectively identify and constitute forms of non-state law, mainly manifestations of customary law, religious law and Indigenous law (though other forms exist, like Romani law). These are law as well, which a huge number of people around the globe recognize and live by, especially in rural areas or within insular communities. State legal officials frequently assert state law’s claim to supremacy and exclusivity, but this ambition (never fully achieved) does not trump what people collectively recognize, construct and live by as law. State legal systems are themselves collectively recognized forms of law – so state law, international law, transnational law and non-state law are all built on the same foundation of collective recognition.

The unifying thrust of these five lessons is that we should simplify how we view the complicated contexts of transnational legal and regulatory multiplicities – and the best way to accomplish this is to engage in modest, tailored theorizing that fits the matters at hand. Much of the morass of transnational legal pluralism lamented by Twining is the self-inflicted product of unnecessarily grand theories. The effort to construct a theory that encompasses everything and addresses every context of legal pluralism – as global legal pluralism suggests – is bound to lead us astray.