100 Berlin`s difficult attempt to reconcile its defense of negative freedom with pluralism has been the subject of heated debate. See Galston, WA, « Value Pluralism and Liberal Political Theory » (1999) 93, American Political Science Review 769–78; Gray, J, « Where Pluralists and Liberal Part Company » (1998) 6 International Journal of Philosophical Studies 17-36; Honneth, A, `Negative Freedom and Cultural Belonging : An Unhealthy Tension in the Political Philosophy of Isaiah Berlin` (1999) 66 Social Research 1063–77; Lukes, S, « The Singular and the Plural: On the Distinctive Liberalism of Isaiah Berlin » (1994) 61 Social Research 687-717; Riley, « Interpréter le libéralisme berlinois » (n° 82). See also Crowder, « Pluralisme et libéralisme » (no. 51). Many of these new global legal structures have evolved in response to the needs of the global economy, which is relentlessly pushing for a system without regulatory barriers. However, the normative perspective of these systems is not limited to the economic sphere. It has significant spin-offs with far-reaching social impacts, from ecology to culture. The impact of these systems on the lives of global citizens has increased dramatically over the past decade. The WTO legal system, for example, has dealt with disputes that address difficult environmental dilemmas – from the risks associated with the use of synthetic growth hormones in cattle, to the damage caused to sea turtles by shrimp trawling, to the risks associated with the industrial use of asbestos.
International standard-setting bodies such as the International Organization for Standardization (ISO) and the Codex Alimentarius Commission have been involved in the development of controversial standards, such as ISO environmental management standards (ISO 14000 series) and the Codex Commission`s evolving standards for foods derived from biotechnology. 125 For a constitutional theory that takes pluralism seriously as a central constitutional value, see Tully, Strange Multiplicity (no. 78). This demand for one voice poses a difficult dilemma for the international community. While it is difficult to question the urgency and authenticity of this aspiration, it remains difficult to translate the demand for a voice into a coherent theoretical or pragmatic form. Two questions seem to be at the heart of this difficulty. First, what does the notion of “legitimacy” mean in a transnational context? Second, in what sense does the call for “democratization” solve the problem of “legitimacy”? These difficulties highlight the deep problem of the link between legitimacy and democracy at the transnational level. 121 The term “legal plurality” was coined by Christopher Tomlins in the context of early Anglo-European colonial law. Tomlins defines “regularities” as “the symbols, signs and instantiations of the classificatory impulse of formal law, the results of its specialized practices, the products of its institutions.
They are the means of influencing the discourse of law, the mechanisms by which law names, accuses and affirms. Moreover, laws are “social products that arise in the course of virtually every widely accepted repetitive practice in a given place.” Compared to the strict and assertive concept of “law”, the term “regularities” reveals the context, contingency and indeterminacy of the norms that claim the status of law. See Tomlins, C, “The Many Legalities of Colonization: A Manifesto of Destiny for Early American Legal History” in Tomlins, C and Mann, BH (eds.), The Many Legalities of Early America (University of North Carolina Press, Chapel Hill, NC, 2001) 2–3, 11. This conference aims to demystify the topic of legal pluralism by examining the relationship between legal pluralism, normative pluralism and general normative theory from a global perspective. The central theme is that treating legal pluralism as a kind of normative pluralism decentred the state, links legal pluralism to a rich literature, and helps to show that some of the central mysteries surrounding the issue can usefully be considered as much broader issues in general normative theory and legal theory. A second problem is that the so-called “global legal pluralism” differs qualitatively in several respects from the old anthropological and social legal representations of legal pluralism and is largely based on a different concern. The affinity of these global legal structures with economic interests has negatively affected their sensitivity to “bourgeois” concerns and has been widely criticized in popular and academic circles. Recent anti-globalization protests – from Seattle in 1998 to Quebec City and Gothenburg in 2001 – have been motivated by deep skepticism about the legitimacy of these a-national legal structures and the belief that their decision-making processes should be profoundly reformed. What emerges from these protests is a deep quest for a “voice” – for greater civil society participation in these global norm-producing processes. Criticism of this evolving network of legal governance has been fierce.
For example, it has been argued that the alliance between the three Bretton Woods institutions (WTO, World Bank and IMF) and the multinational community imposes on global society a new form of “faceless” tyranny, motivated by uncontrollable and (socially) inattentive economic rationality and governed by a dubious regime of “irresponsible experts who judge behind closed doors”. This article questions the intellectual foundations of global legal pluralism as a descriptive and normative position and assesses its fundamental statements with reference to the changing status of individuals in the post-national space. In order to discover the normative core of the pluralist position, the article turns to the rich tradition of pluralism of values in political philosophy, as articulated in particular by Isaiah Berlin. It argues that pluralism as a normative position – whether applied to the abstract sphere of values or to the concrete realm of legal regimes – is normatively underdetermined and offers too little guidance on how endemic conflicts in a pluralistic world should be resolved. If not complemented by other, more substantial principles of political legitimacy, such as democracy, freedom, equality or justice, the principle of pluralism applied to the global judicial space is poised to reproduce or even exacerbate existing inequalities of power and resources between those it affects. 108 Crowder, “Pluralism and Liberalism” (No. 51) 303. Crowder later retracted his firm assertions that “pluralism of values does not support liberalism” and that “pluralism positively undermines any rational argument in favor of liberalism.” Nevertheless, Berlin`s argument that pluralism generates support for liberalism convinces it and seeks to strengthen it with its virtuous presentation of pluralism and liberalism. See Crowder, Liberalism and Value Pluralism (No. 50) vii–viii, 185–213.
48 In the words of Schiff Berman, “pluralism provides both a more accurate descriptive representation of the world in which we live and a potentially useful alternative approach to shaping procedural mechanisms and institutions.” Ship Berman, “Global Legal Pluralism” (No. 2) 1165. The growing acceptance of the democratic ideal in today`s (global) society means that the legitimacy of transnational regimes is increasingly measured by the kind of process that led to the creation of regimes and the public accountability of those who implement them. This trend reflects the widespread expectation that those affected by a particular normative structure should be involved in its design and implementation. Legitimacy is seen as a measure of consent and control. The ongoing protests against “globalization” therefore seem motivated by the feeling that the current political map does not adequately address this widespread expectation. This political failure is twofold. On the one hand, despite all the talk about globalization, we still lack the necessary institutional mechanisms that could allow a global democratic experiment. There is no global policy center from which the legitimacy of transnational norms (and the systems that produce them) can be derived. On the other hand, the institutions of the “nation-state” – which still functions as the main locus of political action – offer no real solution to this global deficiency (contrary to what the Westphalian paradigm postulates). 1 To describe legal pluralism, Gunther Teubner also uses the metaphor of the Roman god Janus, although the duality emphasized by Teubner is not that between its normative and descriptive facets, but the reference of legal pluralism to “social norms and legal norms, law and society, formal and informal, rule-oriented and spontaneous.” .