Erin Ryan

Document Type

Book

Publication Date

2020

Publication Title

The Oxford Handbook on Legal Pluralism

First Page

482

Abstract

This chapter uses the dynamic federalism model of constitutional dual sovereignty as an analytic window into the larger legal pluralism discourse that has emerged in recent decades. Legal pluralism explores the significance of the multiple sources of legal authority and identity with which individuals simultaneously engage. These overlapping sources of normative authority range from local, national, and international institutions of government to private sources of “quasi-legal” norms generated by tribal, religious, commercial, professional, or other associations. Scholarly advocates of legal pluralism challenge the tradition of legal monism—so entrenched that its presumptions often go unnoticed—which views legitimate legal authority as deriving only from an established source of sovereign or natural authority that unambiguously trumps all competing forces. Proponents of legal pluralism contend that it more accurately captures the full scope of political contest in pluralist societies, including that within federal systems, and the full array of normative forces operating on individual actors. Many argue that more purposefully engaging these multiple sources of norm-generation will provide a better framework for inclusive and deliberative policymaking. Skeptics critique the concept for failing to distinguish between legitimate and illegitimately normative forces. They warn that the unresolved analytical foundations of legal pluralism will foment intractable political conflicts between irreconcilable underlying principles, and that embracing legal pluralism will threaten the hard-fought accomplishments of national and international institutions by weakening the presumed prerogatives of nation-states. Constitutional federalism, itself characterized by multiple sources of authority within a single geographical territory, provides a “vanilla” example of legal pluralism in action that sidesteps much of its controversy. Because it involves sovereign authority only, federalism avoids legal pluralism’s normative challenge to statism, and it resolves at least some of the heterarchical uncertainty unleashed by legal pluralism through the hierarchical ordering device of federal supremacy. Nonetheless, the structural features of federalism provide valuable platforms for the kind of cross-jurisdictional deliberation and dialogic policymaking that resonate with the good-governance proposals by many legal pluralists. The chapter uses federalism as a lens to explore the overall pluralist critique of monism and its proposals for more inclusive norm generation. Part II introduces federalism as system of dual sovereignty, briefly reviewing the American and European models. It presents federalism as an example of simple pluralism and explores the convergence between normative pluralism and dynamic federalism. Part III considers examples of negotiated governance in American federalism to assess the claims by normative pluralism for more inclusive dialogic governance. After cataloging various forms of negotiated federalism, it considers the benefits that dialogic processes can confer on governance, and explores the legitimizing values of bargained-for consensus as a procedural impasse tool. Finally, Part IV considers three meta-phenomena shared by legal pluralism and dynamic federalism: their disaggregable positive and normative accounts, their rejection of the categorical zero-sum assumptions that weakened their intellectual predecessors, and the challenges they each face contending with truly zero-sum contexts.

Comments

This chapter was first published in THE OXFORD HANDBOOK ON LEGAL PLURALISM (Paul Berman, ed., 2020).

Faculty Biography

https://law.fsu.edu/faculty-staff/erin-ryan

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