Pluralism Reimagined

Jan Smits, "A Radical View of Legal Pluralism" in Leone Niglia, ed, Pluralism and European Private Law (Oxford, 2012), available on SSRN.

Legal Pluralism is both a phenomenon and a response to that phenomenon.  We live in a world with a plurality of legal orders.  There are municipal legal systems and international law.  These are the most familiar forms of law, the most comfortable types of legal orders.  Then there are international or “supranational” legal orders like the European Union.  Finally, there are private and transnational legal orders that traverse the boundaries both of “law” and the very notion of a “system” (think of Lex Mercatoria or Sports law).

Jan Smits has been writing about legal pluralism for some time.  His work is always interesting.  This chapter is both intelligent and provocative because Smits takes legal pluralism to a new place and gives it a dimension no one has yet considered.

The heart of legal pluralism is the oft-seen fact of conflict among legal orders.  Pluralism of legal orders manifests itself as a struggle between two or more legal orders, each of which claims authority over a legal matter (E.g., CJEU v Bundesverfassungsgericht).  Much ink has been spilled try to make sense of these conflicts and to advance theories about how to respond to clashes between legal orders.

In this fascinating chapter, Smits asks two questions. The first question is the extent to which European private law is in fact characterized by pluralism.  To this question, Smits answers that pluralism in European private law is not a new phenomenon but has in fact been there all along.  What prevented anyone from seeing it was a lack of focus on norms being produced from a variety of sources as well as the work of private actors.  In this regard, Smits writes:

The age-old lex mercatoria would have been joined by a lex sportiva and a codex alimentarius, by codes of conduct on social responsibility and by many other types of self-regulation. These economic and functional normative systems stand next to the customary and religious systems with which legal pluralism has always been associated. It is well known that this latter field is also the area where the most obvious conflicts between State law and non-official laws exist, such as in case of treatment of women, child marriage, arranged marriage, divorce rights, inheritance, and punishment based on religious norms. (P. 5.)

Smits’ makes his most interesting proposal at the normative level.  As he sees it, responses to increased legal pluralism have not been sufficiently creative.  We have not taken adequate advantage of the increase in the pluralism of legal norms.  Here is Smits’ account of the current situation:

Different ‘solutions’ have been proposed to deal with this tension between State law and rules of other norm-­generating communities. They range from establishing a ‘neutral’ State guaranteeing overlapping consensus to identification of group rights (consociationalism) and democratic liberalism.

Problematic, however, is that these theories, at least implicitly, assume that an individual is in principle ‘trapped’ in his or her own community and is not able to ‘escape’ it. Put differently: existing theories about pluralism do not problematise the capacity of an individual itself to act and make choices. I will show in the remainder of this section why this is wrong and that we are in need of a radical overhaul of prevailing views about legal pluralism.  (PP. 6-7.)

Smits’ theoretical move is as simple as it is powerful.  He wants legal pluralism radicalized.  He starts from an empirical claim.  He asserts:

Private actors, such as citizens and firms, are increasingly able to choose the applicable law and the court of their liking. The result is that law becomes more and more a matter of choice, leading to different laws being applicable on the territory of one State: Dutch law can today be found throughout the world, as we can find German, Swedish and Italian law within the Netherlands. There is no longer one law for one territory. (P. 8.)

Smits wants citizens to have the power to opt in and out of a variety (but not all) of legal regimes, just as multinational corporations and private actors now do (in some contexts).  Once so-called “super mandatory law” is settled, citizens should have the right to opt for whatever legal regime suits their purposes.  Smits wants to radicalize present international private law to allow citizens maximum choice.  He writes:

In today’s globalising world, people increasingly travel across borders to obtain in another country the legal status they want to obtain. If they contract, marry or divorce in accordance with the laws of another State, the private international law of their State of residence will often accept the foreign law as valid: it is rare that this would be considered as a violation of the national public order of the State where the citizen resides. This is an anomaly that is increasingly disturbing in today’s globalising world because these same citizens cannot obtain the same legal status by staying at home. In other words: those who physically travel to another country and opt in to the norms of the other jurisdiction are treated differently from those who are not able or willing to do so. In my view, there is no longer a good reason for this distinction. (P. 9.)

One might wish that Smits had elaborated his points in more detail. He does provide some specific examples (e.g., religious attire, divorce and marriage) but his larger point is conceptual (in my opinion, this is where he makes real progress).  Smits sees pluralism not only as an accurate descriptive account of the state of law (in the EU and elsewhere) but he radicalizes it in a way no one has previously.  He urges us to take legal pluralism seriously and provides interesting arguments for just that view.  In short, this chapter is worthy of serious attention.