Pluralism of law

Much of the rich conceptual groundwork for the contemporary debate on global legal pluralism has been laid by antecedent research in legal sociology and anthropology. In her seminal analysis, Sally Engle Merry defines legal pluralism as ‘a situation in which two or more legal systems coexist in the same social field’.^{Footnote 8} In this sense, legal pluralism is a feature of domestic legal systems (in which ‘state law’^{Footnote 9} coexists with the rules of other semi-autonomous institutions such as corporations, religious orders, professional and civil associations, or academic institutions) as much as of the contemporary transnational realm. Nonetheless, the intensification of global interdependence and the emergence of bodies of rules to govern those relationships have redoubled the empirical relevance of the pluralist thesis.

Since legal pluralism emerged as an effort to free the concept of law from its strict reliance on the sovereign state and its institutions, its distinctiveness can be better understood in contrast to what Griffiths terms ‘the ideology of legal centralism’.^{Footnote 10} According to legal centralism, the only norms that properly enjoy the status of law are the commands of the sovereign state, ‘uniform for all persons, exclusive of all other law, and administered by a single set of institutions’.^{Footnote 11} Or, in Bodin’s classic formulation, ‘The word law signifies the right command of that person, or those persons, who have absolute authority over all the rest without exception, saving only the law-giver himself’.^{Footnote 12} Moreover, this means that ‘no government is sovereign and subject at one: nor can be properly styled half or imperfectly supreme’.^{Footnote 13} Defined in these strict terms, sovereignty is an attribute like pregnancy: one cannot be pregnant and not pregnant at the same time; and one cannot be halfway between the two.^{Footnote 14} As a corollary, it is equally impossible for a subject to have two sovereign masters simultaneously (that is, for two or more competing legislative authorities to have authority to rule over a particular case at the same time), since for one of these to accept the concomitant authority of the other would be tantamount to admitting that the first one is not sovereign. Thus, ‘it is the distinguishing mark of the sovereign that he cannot in any way be subject to the commands of another, for it is he who makes law for the subject’.^{Footnote 15}

The conceptual tidiness of the unitary account of sovereignty owes much to the messiness of its historical context. As historians have long noted, ‘absolutism’ as it applies to European politics in the sixteenth through the mid-eighteenth centuries is something of a misnomer.^{Footnote 16} In fact, the age of absolutism was marked by fierce power struggles in which monarchical authority was incessantly contested by countervailing forces. Hobbes and Bodin formulated their classical accounts of sovereignty against the background of titanic political struggles not only among ecclesiastical and temporal sources of authority, but also among feudal and aristocratic modes of authority on the one hand, and centralized monarchical authority on the other; to say nothing of episodic succession disputes and confessional conflicts. During the early modern period, sovereignty, like absolutism, was a form of wishful thinking designed to allay the well-founded anxieties of the monarch, ground his claims to superlative authority, and undercut the pretensions of his challengers.^{Footnote 17} That is to say, the idea of a sovereign with absolute and unlimited authority to issue laws without himself being subject to man-made laws fulfilled the ideological function of extinguishing competing claims to power that threatened the status of the monarch. In its origins, sovereignty is paradoxically both a product of and a response to the fact of pluralism. It is therefore hardly surprising that sovereignty has once again become an intensely contested category against the contemporary backdrop of shifting structures of public power, this time in a global context. Conversely, so long as law can reasonably be assumed to issue from a single sovereign, and the sovereign is not itself ‘in a habit of obedience to a determinate human superior’,^{Footnote 18} pluralism remains a marginal concern.

Precisely because early modern accounts of sovereignty served the ideological function of discrediting rival claims to authority and consolidating the seat of power, it is difficult to reconcile sovereignty as an ordering norm with a pluralistic conception of law. In fact, according to the legal centralist conception of law as sovereign command, legal pluralism is logically incoherent: all but one of the claimed sources of authority must be subject rather than sovereign. By contrast, pluralism allows for the simultaneous authority of several lawgivers between whose commands no relationship of hierarchy can be drawn. According to legal pluralism, the idea that law is ‘a single, unified and exclusive hierarchical normative ordering depending from the power of the state’ is an ‘illusion’.^{Footnote 19} Here, legal pluralism’s distinctive analytical move is to widen the domain of law to include societal norms that originate from sources other than the formal organs of public power. One of the forerunners of such a conception, Austrian legal scholar Eugen Ehrlich, endorsed a view of the law as reaching beyond the narrow confines of statutory or judicial norms (what he called ‘Legal Provision’),^{Footnote 20} arguing that law must instead be understood ‘in its social relations’ and as a ‘function of society’.^{Footnote 21} According to Ehrlich, ‘the great mass of law arises immediately in society itself in the form of a spontaneous ordering of social relations, of marriage, the family associations, possession, contracts, succession, and most of this Social Order has never been embraced in Legal Provisions’.^{Footnote 22} The theory of law as sovereign command captures a very slim range of such relations, which are historically and conceptually antecedent to state law. Memorably, Ehrlich argued that legal analysis that focuses on enacted law alone is tantamount to ‘trying to catch a stream and hold it in a pond; the part that may be caught is no longer a living stream but a stagnant pool’.^{Footnote 23}

According to the capacious conception of law endorsed by legal pluralists, ‘not all the phenomena related to law and not all that are law-like have their source in government’.^{Footnote 24} In the domestic realm, ‘nonlegal forms of normative ordering’ can include ‘institutions such as factories, corporations, and universities and include written codes, tribunals, security forces, sometimes replicating the structure and symbolic form of state law’, as well as ‘formal systems in which the processes of establishing rules, securing compliance to these rules, and punishing rule breakers seem natural and taken for granted’.^{Footnote 25} Merry contends that understood thus, ‘virtually every society is plural’.^{Footnote 26}

From this lens, legal pluralism is not only a hypothesis about competing sources of institutional authority but also one concerning the nature of the law itself. According to proponents of the pluralist approach, contemporary forms of ‘law’ include an increasingly hybrid range of commitments collectively generated by diverse communities:^{Footnote 27} ‘legal pluralism is … defined no longer as a set of conflicting social norms but as a multiplicity of diverse communicative processes in a given social field that observe social action under the binary code of legal/illegal’.^{Footnote 28} In other words, rather than being the privileged currency in which the state communicates power to its subjects, law is subject to appropriation by diverse social systems that may or may not have formal links to the sovereign state but which nevertheless understand themselves in legal terms.^{Footnote 29}

Pluralism of regimes: Westphalian vs postnational pluralism

While the idea of law as sovereign command is deeply at odds with the pluralistic account of law espoused by Ehrlich, Griffiths, Merry, and others, it is compatible with a different kind of legal pluralism understood as the pluralism of legal regimes or orders. Thus, the classical interstate system is deeply pluralistic insofar as it encompasses a plurality of sovereign states, each with its own discrete legal order, coexisting in the absence of any overarching legal authority or hierarchical ordering. I will call this variant of regime pluralism Westphalian pluralism. The origins of this system are conventionally dated back to the 1555 Peace of Augsburg and the 1648 Treaties of Westphalia, which together formulated the broad principles of non-interference, autonomy, and sovereignty (both internal and external) of states.^{Footnote 30} Under this system, pluralism stems from the heterarchical relationship among a multiplicity of political units, each of which claims exclusive jurisdiction over a particular territory and its inhabitants. The authority of other legal systems, such as international treaties or institutions, is borrowed from and subordinate to the states that constitute them. From this perspective, modern international institutions ventriloquize the will of states, but do not count as protagonists of international politics in their own right, at least on a par with sovereign states. The normative centrepiece of Westphalian pluralism is the principle of ‘sovereign equality’^{Footnote 31} according to which each sovereign state constitutes a discrete legal order coexisting with its peers under a presumption of independence and interacts with them through the medium of its own constitutional law.^{Footnote 32}

While Westphalian pluralism has been a continuous feature of the modern international order since the emergence of the sovereign territorial state in early modern Europe, the present academic debate to which this article contributes highlights a more recent and more complex form of pluralism created by the multiplication of transnational norm-producing regimes. The legal and quasi-legal entities that are considered under the rubric of global legal pluralism defy systematic categorization: bodies such as the United Nations, the World Trade Organization, the International Criminal Court, the Inter-American Court of Human Rights, the International Chamber of Commerce, the International Organization for Standardization, as well as decentralized and/or contractual bodies of norms such as bilateral investment treaties, lex mercatoria and lex sportiva have been put forward as emblematic of the thriving new sphere of transnational law.^{Footnote 33} These entities vary along a number of dimensions including their substantive scope, institutional make-up, binding status, membership composition, aims, and functions. Some are geographically contiguous, while others bring together far-flung states that share common interests. Occasionally, regional institutions can become members of other international institutions; and even where they do not formally do so, legal regimes interact with one another in increasingly complex ways.^{Footnote 34}

On this view, regime pluralism refers not only to the multiplication of norm-producing institutions in the global legal sphere, but also to the fact that the entities in question can no longer be comprehended by a single institutional model, least of all one based on classical interstate agreement. Thus, unlike the symmetrical multiplicity of sovereign states under Westphalian pluralism, global legal pluralism captures an array of legal forms variously taxonomized as ‘orders’, ‘systems’, ‘regimes’, ‘instruments’, or ‘institutions’. On a wider definition, it regards not only states, but also other bodies of rules such as ‘international law, and law of organized associations of states such as the EU, law of churches and other religious unions or communities, or laws of games, and laws of national and international sporting associations’^{Footnote 35} as capable of producing law and therefore as contributing to a global pluralism of regimes. Once we loosen the positivist requirement that all law must issue from the sovereign state, therefore, we find ourselves in a virtually unfathomable legal pluriverse in which states are salient but by no means solitary sources of law. In Gunther Teubner’s words, it is ‘the implicit or explicit invocation of the legal code which constitutes phenomena of legal pluralism, ranging from the official law of the state to the unofficial laws of world markets’.^{Footnote 36}

Thus, if the legal centralist conception has trouble accommodating the diversity of extant legal forms, the pluralist approach struggles to limit that diversity. As a descriptive matter, pluralism ‘runs the risk of defining legal system so broadly that all social control forms are included’.^{Footnote 37} As a result, the more we loosen our notions of what counts as law (legal pluralism in the first sense defined above), the more pluralism we see in the world of legal regimes. I will shortly address the normative implications of this problem.

The novelty of the contemporary global legal landscape derives in part from the fact that certain regimes and institutions at the sub-, supra-, and transnational levels can create new obligations, rights, and duties that bind states, individuals and other actors even in the absence of hierarchically ordered means of enforcement. Consequently, ‘[t]he classical distinction between domestic and international spheres’ becomes blurred, with ‘a multitude of formal and informal connections taking the place of what once were relatively clear rules and categories’ for distinguishing the domestic and extraterritorial sourcing of norms.^{Footnote 38} The expanding norm-making authority of a plurality of regimes poses a challenge to the traditional paradigm of delegated authority between sovereign states and international institutions. At the extreme, global legal pluralism ‘refutes categorically any claim that the official law of the nation-states, of the United Nations or of international institutions enjoy any hierarchically superior position. It creates instead the image of a heterarchy of diverse legal discourses.’^{Footnote 39} Most importantly, such institutions challenge the state’s claim to control all exercises of political power within its territory, placing a strict notion of sovereignty under serious strain. For all of these reasons, postnational pluralism, understood as either real or potential competition among multiple sources of law (whether states or non-state entities) that purport to govern the same set of phenomena, is deeply at odds with Westphalian pluralism.^{Footnote 40}

Pluralism of ordering principles

Although the Westphalian system is a pluralistic one insofar as it comprises multiple sovereign states subject to no superior authority, the master principle of state sovereignty serves as its central ordering norm. By contrast, global legal pluralism is often taken to imply a more radical form of fragmentation. Unlike Westphalian pluralism, it lacks a ‘metaprinciple of authority’^{Footnote 41} (such as sovereign equality) on the basis of which its constituent units may be recognized and related to one another. Instead, it is marked by a ‘disorder of orders’ ‘in which no general steering mechanism is available to frame relations between orders’.^{Footnote 42} In this sense, then, pluralism depicts a world in which all ordering principles, including that of state sovereignty, have been dethroned, and where non-state institutions enjoy normative authority and partial autonomy alongside states without being subordinate either to sovereign will or to any plenary set of ordering norms. In the third and final sense I identify in this essay, legal pluralism refers to the pluralism of ordering principles.

In the absence of an ordering principle that is acknowledged to be valid by the discrete regimes that populate the global legal sphere, the relationships among these regimes are best characterized as ‘interactive rather than hierarchical’.^{Footnote 43} To be sure, in a world of plural regimes, there remains a great range of well-defined instances where the laws of one order must prevail over others. However, in such a world, we would also expect to see a greater range of instances where relationships are less clear-cut, and in which ‘not all legal problems can be solved legally’.^{Footnote 44} Most importantly, ‘the superfluity of legal answers’ creates cases where ‘the same human beings or corporations are said to have and not have a certain right’.^{Footnote 45} In other words, taken together, the pluralism of regimes on the one hand and the pluralism of ordering principles on the other make for a global legal landscape in which different sorts of regimes coexist in the absence of an overarching structure for deciding competing claims to authority. The unruliness of that landscape is nicely captured by the Jackson Pollock painting that adorns the cover of Nico Krisch’s book on legal pluralism.^{Footnote 46}Undulating Paths (1947) offers a striking visual symbol for this condition, depicting an irrational jumble of shapes knitted together by tangled ribbons of black and contrasting flecks of colour, in which the wandering eye of the viewer searches in vain for a convenient unifying motif.

The remainder of this discussion (and the collaborative volume of which it is a part) is broadly concerned with legal pluralism in the second sense outlined above, that is to say, the pluralism of legal regimes in the transnational realm,^{Footnote 47} although this notion of pluralism readily implicates the other two conceptions outlined above. With regard to the first conception, global legal pluralism appears to give the upper hand to a flexible account of law as a discursive code rather than sovereign command; and with regard to the third, it destabilizes traditional ordering principles tailored to a system of Westphalian pluralism. Regrettably, I cannot do justice to the complexity of these important conceptual links between different manifestations of legal pluralism here. In what follows, I will focus rather on the cogency of normative arguments that respond to the increasingly heterogeneous, fluid, functionally fragmented realm of global law, where a given set of actions may be governed by an assortment of legal systems or by none at all.

Beyond anti-monism: shared vulnerabilities

The most persuasive aspect of value pluralist philosophy is its critique of monism. What is less clear is whether value pluralism is equally well prepared to face down the anarchical aftermath of that critical move, namely, an ethical realm divested of all of its sovereign values. In other words, having knocked down the possibility of ordering and prioritizing human values, pluralists must reconstruct an alternative way to adjudicate the relentless conflicts of values they cite as evidence in the case against monism. Were it to fail at that task, value pluralism would collapse into relativism, the total repudiation of the possibility of objectively evaluating values.

Indeed, of all elements of Berlin’s political philosophy, few have attracted more critical attention than his attempt to distinguish pluralism from mere relativism – what I will unimaginatively call the slippery slope problem.^{Footnote 82} In rejecting the monist’s search for a final answer to enduring moral problems, Berlin tries to resist the opposite extreme of denying altogether our ability to distinguish between good and bad ideas, values, practices, and norms. In other words, if pluralism is to be considered an ethical project, its proponents must show not only that it does not altogether eliminate the possibility of reasoned moral judgment but also that it can offer guidance to human beings who daily confront thorny moral dilemmas. If it is indeed the case that we have ‘no escape from choices governed by no overriding principle’,^{Footnote 83} as Berlin is the first to point out, we are especially in need of rational ways to resolve ethical conflicts that attend the condition of pluralism. Similarly, while it is reasonable to argue that ‘[t]he difficulty of many of our moral choices seems to stem from the deeply fragmented nature of the ends we pursue’,^{Footnote 84} observing that moral choices are difficult makes alleviating conflict an all the more pressing task. Can value pluralism give us the kind of guidance that would keep it from sliding into wholesale relativism?

The problem of distinguishing value pluralism from complacent relativism has a parallel in global legal pluralism’s struggle to specify the limits of acceptable pluralism in the transnational realm. In the global context, pluralism, by itself, tells us hardly anything about where a peaceably multi-vocal world of institutions shades into abject anarchy. Thus, while global legal pluralists rightly warn us against the dangers of uniformity and hierarchy in the international realm, their position is vulnerable to concerns about the centrifugal tendency of a ‘disorder of orders’.^{Footnote 85} In an unregulated global system, what is to keep the fragmented and relatively autonomous systems from zooming off into the outer reaches of autarky? Once again, the parallel with value pluralism is instructive in terms of answering this question: if value pluralists have managed to extract from pluralism itself a principle by which to resist the slide into meta-ethical anarchy, then this might also provide the normative standard needed to distinguish global legal pluralism from unrefined chaos. Is all pluralism valuable, or are there extreme forms of pluralism that should be considered undesirable under a logic internal to pluralism itself?

In order to reinforce the barrier between relativism and pluralism, value pluralists have emphasized that they are concerned in particular with values that are conducive to ‘human flourishing’.^{Footnote 86} Unlike relativists, pluralists believe ‘that there are at least some universal values, generic goods that contribute to any good life’, regardless of one’s ‘particular cultural or epistemological perspective’.^{Footnote 87} On the basis of these ‘universal’, ‘generic’, or ‘objective’ goods, pluralists argue, ‘the distinction between good and bad, and between good and evil, is objective and rationally defensible’; in other words, moral distinctions are neither arbitrary nor purely subjective.^{Footnote 88} Put differently, pluralists, in contrast to relativists, do recognize that ‘[t]here are obvious limits set by common human needs to the conditions under which human beings flourish and human societies flourish’, and that what falls within those limits has a stronger moral claim on us than what falls beyond them.^{Footnote 89} By contrast, value pluralists regard relativism as ‘too permissive’ with regard to ‘what possibilities are acceptable and how they may be pursued’,^{Footnote 90} whereas pluralism entails a ‘moral vision’ ‘of reasonable people whose lives are given meaning and purpose by a conception of a good life’.^{Footnote 91} Value pluralism strives to enable not all imaginable conceptions of the good life but only ‘reasonable’ ones.^{Footnote 92}

None of these answers is entirely satisfactory, however. Moral standards are needed precisely where the conditions for flourishing are not as ‘obvious’, where needs are not held to be ‘common’, or where the ‘reasonableness’ of a conception of the good life is not self-evident. That is to say, even if we grant that ‘value pluralism does not rule out the possibility of compelling (if nonalgorithmic) arguments for right answers in specific situations’,^{Footnote 93} this does not address the question of what kind of tools value pluralism gives us for making such arguments rather than merely allowing them to be made on other, non-pluralist grounds. The question is not so much whether pluralism ‘does not exclude reasoned value judgment’,^{Footnote 94} but whether pluralism itself gives us any guidance as to how we can distinguish right from wrong. Or is pluralism parasitic on other sorts of principles (with no intrinsic link to pluralism) in order to resolve such moral disputes? Can pluralism draw its own outer limits?

Happily, the question of whether a useful analytical distinction exists between relativism and value pluralism is one we can leave to political philosophy proper. That said, since our goal is to find out whether global legal pluralism furnishes free-standing normative principles by which we may evaluate existing forms of global legal ordering, we are interested in whether the cognate idea of value pluralism provides a compelling way to adjudicate between conflicting values, or whether it relies on the assistance of other, non-pluralistic principles to resolve such conflicts. What kind of centripetal or integrative resources might pluralism offer a disordered world?

For his part, Berlin answers this question by highlighting pluralism’s mutually supportive relationship with what he terms ‘negative liberty’.^{Footnote 95} He reasons that a liberal philosophy that is cognizant of value pluralism must allow individuals to craft their own ends, and treat human beings as autonomous moral agents capable of assigning moral value, adjudicating ethical conflicts, and deciding between competing conceptions of the good life. Other thinkers of pluralism have also highlighted the apparent reciprocity between value pluralism and individual autonomy.^{Footnote 96} In contrast to the monist quest for an ultimate transcendence of value conflict, the pluralist tradition values dissensus as the handmaiden of liberty. As James Madison argues in Federalist Number 10, ‘As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed.’^{Footnote 97} By contrast, the idea of ‘removing the causes of faction … by giving to every citizen the same opinions, the same passions, and the same interests’ is a ‘cure worse than the disease’.^{Footnote 98} To Madison, this tendency to embrace rather than eradicate pluralism is a hallmark of the republican tradition, which views the divergence of individual wills not as a social pathology to be cured, but as a condition of human freedom. On this view, political institutions that as far as possible allow each individual to pursue her own notion of a fulfilling life help to forestall authoritarian excess.

In a similar way, Berlin’s defence of negative liberty is intimately linked to his defence of value pluralism: specifically, he favours negative liberty because it enables individuals to choose their own ends from within the universe of competing values.^{Footnote 99} As long as liberalism rests on negative liberty, Berlin argues, it can avoid the monist trap; that is to say, it can accommodate competing values without establishing itself as superior to them. However, critics have been unwilling to let Berlin off the hook so easily. In privileging liberty as a master value of sorts, they argue, Berlin betrays his own value pluralism, which requires that we remain equidistant towards all objective values.^{Footnote 100} John Gray states the charge starkly: ‘If there are irreducibly many values which cannot be ranked or weighed on any single scale, negative liberty – which Berlin sees as the core liberal value – can only be one good among many… The impossibility of deriving the priority of negative liberty over other values from value-pluralism can be seen as a defeat for liberalism.’^{Footnote 101} Whether or not we accept Gray’s drastic conclusion, Berlin’s position implies that value pluralism is desirable because and to the extent that it supports individual liberty, which does suggest that it is liberty, rather than pluralism as such, that gives Berlin’s philosophy its normative ballast.

The conclusion Gray draws from his critique of Berlin is that instead of elevating negative liberty above the fray of other values (an illegitimate philosophical move under value pluralism), the most that liberals can endorse without violating the pluralist proviso is a modus vivendi that protects the conditions of peaceful coexistence in increasingly pluralistic societies. Still, as Galston points out, that argument in turn appears to situate peaceful coexistence as an overriding value, repeating Berlin’s purported error.^{Footnote 102} That peace is one contingent value among many seems clear: for instance, it is far from obvious that we ought to put up with injustice or inequality (i.e. compromise on other values) for the sake of peaceful coexistence. Such a prescription (which seems to be implied by the valorization of modus vivendi over, say, refusing to live with certain infractions) itself seems to violate pluralist neutrality.

A third attempt to extract normative principles out of the meta-ethical axiom of pluralism is the theory of liberal and pluralist ‘virtues’ put forward by Crowder. Crowder argues that a series of ‘pluralist virtues’, including generosity, realism, attentiveness, and flexibility, are in a ‘mutually reinforcing’^{Footnote 103} relationship with liberal virtues that include ‘broad-mindedness’, ‘moderation’, ‘attentiveness’, and most importantly, ‘personal autonomy’, understood as the idea of ‘making one’s own life’ free of coercion or manipulation and in accordance with one’s own standards.^{Footnote 104} Crowder makes the all-important logical transition from value pluralism to the liberal ideal of autonomy by arguing that ‘in order to choose rationally among contending plural values one needs to be autonomous’.^{Footnote 105} To face those ‘hard choices’, pluralism demands a ‘self-directing agent’ who can reflexively evaluate her own inclinations and the standards of conduct expected of her.^{Footnote 106} Still, the virtues Crowder elaborates seem to be sensible and laudable responses to pluralism rather than principles intrinsic to or implied by pluralism itself. In other words, they neither follow automatically from the fact of value pluralism, nor are they the only available responses to it. Once again, pluralism-as-fact seems to pose a pressing question to which pluralism-as-norm is unable to supply the answer.

Hasty and incomplete though it may be, this discussion illustrates the difficulty of transforming the value pluralist thesis into a normative principle capable of addressing, rather than merely chronicling, inevitable conflicts between values. In responding to problems that are themselves the consequence of pluralism, including those of conflict and uncertainty, pluralism cannot be our sole guiding principle. The distinction between values that are worthy of protection and those that are not, between legitimate and illegitimate manifestations of pluralism, cannot be drawn without the aid of some external principle. That principle may be liberty or equality or justice or community,^{Footnote 107} but it cannot be pluralism simpliciter. Those who espouse value pluralism as a normative position rather than a merely descriptive one seem inevitably to elevate some good, some principle, some norm, above the hubbub of a pluralistic moral universe as that by which we must order Pandora’s box.

These qualms underline a deeper philosophical difficulty with the pluralist position. Whether we speak of ethical, cultural, social, or legal pluralism, pluralism is a given. As Berlin eloquently shows, pluralism frames the human condition. Normatively, however, pluralism, as such, is virtually inert: it must be respected as a product of human intellectual freedom, but it does not itself imply a particular normative commitment. In Crowder’s words, ‘The mere fact that values are ‘‘plural’’, in the relevant sense, tells us nothing about which of the vast range of values known to us from human experience are the values we ought to choose for ourselves and our social institutions. Pluralism tells us that we must choose but not what to choose.’^{Footnote 108} If value pluralism is to be a prescriptive position rather than a diagnostic one, the observation that values are incommensurable cannot be the last word on value conflict. Pluralism should not be an abdication of the philosophical responsibility to adjudicate conflicts among values.

In the global legal realm, too, the extent to which pluralism can be a solution rather than a problem remains a puzzle. After all, the pressing task of social organization is not to amplify pluralism (the way, say, liberalism seeks to broaden liberty or feminism seeks to mainstream the female sex), but to find non-oppressive ways to channel and contain its centrifugal effects. As political philosophers who extol pluralism as an expression of our intellectual faculties nevertheless recognize, the key challenge is to calibrate and justify the outer limits of pluralism. For instance, Rawls speaks of the problem of finding principles to govern the basic structure of society under conditions of ‘reasonable pluralism’, that is to say, where citizens disagree about ultimate questions of the good life but recognize their need to live together under conditions equally acceptable to (though not necessarily accepted by) all.^{Footnote 109} Social and political institutions must be open, but they must also be stable, sustainable, and able to supply legitimate responses to conflict, however provisional those responses may be.^{Footnote 110} To focus on pluralism as a desideratum is to focus on the wrong side of the equation: the more pressing question is that of finding a predictable, habitable and (one hopes) just normative framework in which to accommodate the pluralism – whether of values, identities, norms, legal systems – that we find in the world.

In the realm of public institutions, value pluralism’s normative indeterminacy (whereby it struggles to supply a criterion by which to resolve dilemmas arising from the fact of pluralism) may ‘unleash centrifugal forces that make a decently ordered public life impossible’.^{Footnote 111} As a normative blueprint, global legal pluralism runs a similar risk: unless it is supplemented by independent principles of transnational political legitimacy, it gives us too little guidance in distinguishing legitimate exercises of normative authority from unjust, oppressive, or ultra vires instantiations of power. Thus, we might imagine a pluralistic world in which every legal regime pursues its own ends obliviously to the others, unencumbered by any shared commitments to guide its respective functions. What would be the pluralist critique of that world? Would pluralism alone be an adequate principle for distinguishing teleological fragmentation and hermetic isolation from systemic integration, miscommunication from dialogue, entrenched conflict from jurisgenerative engagement, or opportunistic interactions from coexistence guided by shared principles?

Furthermore, under a pluralistic system that lacks some common understanding about how public ends ought to be ordered, pre-existing power asymmetries and disparities in institutional resources could well be the sole determinants of each specialized regime’s ability to successfully pursue its own ends in the face of competing claims to authority. Thus, as long as its distinguishing mark is resistance to a uniform global order, pluralism may have few resources with which to dismantle existing relations of domination. Like the philosophical analogue of relativism, global legal pluralism might merely reflect rather than remake the status quo, whether just or unjust. At best, legal pluralism may end up as ‘a part of the problem and not of its solution’;^{Footnote 112} in Martti Koskenniemi’s apt formulation, it might ‘cease to pose demands on the world’.^{Footnote 113} In the absence of a substantively just constitutional ordering, or, at the very least, a loose set of customary norms, usages, and understandings to govern the coexistence of legal orders, the horizontal compartmentalization and vertical dispersal of public power may even threaten to undo the achievements of otherwise well-institutionalized legal systems (not least among them constitutional democracies).

In the domestic realm, pluralism can throw the basis of political obligation into doubt if it refuses to grant the state a conditional measure of decisional primacy over other forms of human association. Even rightful demands by the state might occasionally interfere with the manifold allegiances of its citizens, and radical pluralism gives us no reason for prioritizing our civic duties. Where each value or institution seeks to retain its own autonomy in the absence of a modulating force, pluralism is vulnerable to hegemonic conquest. In order to resist this ‘anarchical’ or radically dissociative tendency,^{Footnote 114} pluralism must concede that ‘social peace and stability’ can help ‘create the framework within which the attainment of other goods becomes possible’.^{Footnote 115} Some recognition of the primacy of public power (however conditional) is necessary to resolve what I will call pluralism’s autophagy problem: in the total absence of a coordinating authority, pluralism is likely to consume itself.^{Footnote 116} Like democracy, pluralism requires mechanisms to defend itself against projects of domination that arise from within its ranks.

In liberal democracies, constitutional rule safeguards pluralism against its own excesses by ‘select[ing] a subset of worthy values, bring[ing] them to the foreground, and subordinat[ing] others to them’.^{Footnote 117} Constitutionalism combats this anarchical tendency by highlighting some values as more central to the public weal than others. However, in the absence of such an authoritative ordering of principles, ends, and prerogatives, pluralism in the global legal realm runs a more immediate risk. Relatively more powerful regimes and the values they pursue (such as international institutions of trade and finance) threaten to subjugate other important objectives (such as labour rights, public health, sustainability, or development) and stunt the development of regimes capable of pursuing them. To take one example, in recent years, the adjudicative organs of international economic regimes have forayed into other areas of public policy, appraising domestic laws on environmental and consumer protection, public order, and human rights in view of their conduciveness to free trade. Just as value pluralism within the domestic public realm is guaranteed by ‘an authoritative partial ordering of public values’ found in the constitution,^{Footnote 118} global legal pluralism requires ordering principles to protect healthy pluralism from either being reduced to anarchy or obliterated by a hegemonic force from within.

Furthermore, global legal pluralism raises the perennial risk of unregulated and open-ended conflict among fragmentary nodes of authority. Although the functional delimitation of governance tasks in the transnational realm may give the impression of a neat division of labour among regimes with complementary tasks, in reality, there is no guarantee that the need for transnational regulation of any given area will be met by appropriate and effective institutions. As Helfer writes, ‘pure functionalism no longer accurately describes most forms of international lawmaking and adjudication’.^{Footnote 119} Rather, ‘[a] more accurate assessment recognizes that the proliferation of institutions and the blurring of issue area boundaries have enabled different decision makers to address similar issues in distinct international fora’.^{Footnote 120} In the absence a commonly recognized allocation of competences among regimes (a function served by constitutions in the domestic realm) such overlap can produce salutary forms of regime competition and sharing of best practices, or it can lead to redundancy, conflict, and ‘multiple legalities’.^{Footnote 121} In the long run, an overabundance of competing ordering principles might scramble jurisdictions, disrupt expectations of comity and mutual recognition, and undermine the predictability of the law. Insofar as global legal pluralism unsettles the sense of certainty on which law as a social system rests, it introduces a sort of ‘existential anxiety’ into international law.^{Footnote 122} Although philosophers may safely abdicate the task of ranking and ordering values in the abstract, unregulated pluralism in the concrete realm of transnational law might undermine the law’s function of stabilizing expectations,^{Footnote 123} encourage unaccountable, even hegemonic exercises of power, and undermine the ability of democratic political communities to govern themselves.

Paradoxically, then, the key element of any pluralist philosophy must be the norms and practices by which it proposes to regulate multiplicity without smothering the variety and dynamism essential to human freedom. The challenge of global governance (for legal pluralists and monists alike) is whether the postnational realm ought to be more or less regulated through shared principles, remedies, procedures, standards of deference and prevalence, and norms of reason-giving. That is to say, the choice is between more or less regulated forms of pluralism, rather than between the totalizing monism of a world state and the status quo of a haphazard constellation of regimes and institutions. This puts the onus on advocates of global legal pluralism to flesh out a philosophically and empirically compelling account of the substantive principles and procedural safeguards needed to transform the wanton, centrifugal plurality of law into a legal pluriverse that is conducive to individual freedom and other equally basic standards of political legitimacy.^{Footnote 124}

A final methodological note is in order. Value pluralism and global legal pluralism are alike insofar as they both address the fragmentation of ends: in the former case, these are ends sought by human beings, and in the latter case, they are goods sought by formal institutions in the transnational realm. Thus, both value pluralism and global legal pluralism highlight the potential for conflict among valuable ends in the absence of an overarching, authoritative system for adjudicating between them. That said, in the global context, the kind of pluralism I address in this article results from the multiplicity of norm-producing institutions rather than a conflict among values per se. Put differently, the potential for conflict under global legal pluralism is not necessarily due to incommensurability among the goods sought by different regimes (those goods may or may not, in fact, be incommensurable in the sense used by value pluralists), but stems from competing claims to authority made by these regimes, irrespective of the compatibility or otherwise of their respective teloi. While human rights, free trade, environmental protection, and economic development may or may not represent incommensurable policy ends, the crucial conflicts are not likely to be among such values considered in the abstract, but among the organized power structures that claim to stand for them. There is a silver lining to this: even if the respective values represented by the WTO, the ILO, the EU, or international environmental regimes are seen as incommensurable, the relationships among the institutions themselves can be more or less harmoniously ordered. Furthermore, although it may be the case that human beings value a great variety of incommensurable goods, it does not necessarily follow that these goods would be best instantiated by a pluralist framework in the global legal realm. In other words, that there are many incommensurable goods does not imply that each good should be pursued by an autonomous regime. It may well turn out that a relatively consolidated form of global constitutionalism, rather than unregulated global legal pluralism, is the best way to ensure a healthy pluralism of values. Value fragmentation does not dictate institutional fragmentation: after all, in the domestic context, constitutional democratic mechanisms can help to sustain, encourage (and occasionally constrain) pluralism.^{Footnote 125}