Scholarship@WashULaw

Document Type

Book Section

Publication Date

2021

Publication Title

Entangled Legalities Beyond the State

Abstract

This essay addresses core theoretical issues surrounding global/transnational legal pluralism, taking up the work of leading theorists. First, I demonstrate that global legal pluralism is very different from earlier versions of legal pluralism (postcolonial and sociological). Next, I expose the flaw of over-inclusive conceptions of legal pluralism, which appears in the global legal pluralism of Paul Berman, and I explain why theoretical concepts of law cannot solve this flaw. 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 for global legal pluralism by Ralf Michaels, showing why it is unsuitable for many situations of legal pluralism. The approach to transnational legal pluralism I articulate avoids these conceptual problems. It centers on conventionally identified forms of 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.

Keywords

Legal Sociology, Legal Anthropology, Legal Theory, Jurisprudence, Concept Of Law, Legal Pluralism, Private Regulation, Transnational Law, Globalization, Institutionalized Normative Ordering

Publication Citation

Brain Z. Tamanaha, A Reconstruction of Transnational Legal Pluralism and Law’s Foundations, in Entangled Legalities Beyond the State 449-477 (Nico Krisch eds., 2021)

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