The modest purpose of this paper is to suggest how recent research in the field of law and globalization might be relevant specifically to jurisprudence rather than legal theory in a broader sense. It is precisely because of the state character of the jurisprudence and the rather esoteric and conceptual discourse of its main debates that it is not only difficult to determine what concrete effects globalization might have on the fundamental theoretical principles of jurisprudence: it is difficult to see how it could be considered relevant in view of the typically hostile attitude towards non-State legal phenomena. In what follows, I will give a rough overview of the current debate on globalization and attempt to present a roadmap that shows how these concerns can be linked to the traditional concerns of contemporary jurisprudence. In short, one view of global legal pluralism is that of the “catalyst”: the degree, or at least the relevance, of legal pluralism increases to some extent proportionally as traditional social structures are affected by globalization. The most important point of this argumentative strategy is that globalization is somewhat discreet in all of this, in the sense that all traditional arguments against jurisprudence apply with equal force in the context of globalization. Raz pointed out that structural features are conceptually necessary in a sense, as they are not always in agreement with the facts. State legal systems claim supremacy, even if they do not actually achieve it. The crux of globalization is not only that dominance, hierarchy and completeness are descriptively inadequate. Rather, the fact is that such claims do not even characterize the conceptual nature of legal systems, the “claims” that make them characteristic. We now move on to that point.
As a result, the state`s relationship with many of these nominally private regimes is characterized by interdependence rather than domination. According to the authors, this requires a shift to a model of interaction of legal institutionality: however, this relative isolation should not be a cause of relief for law schools because of the second type of impact that globalization has on legal education. To begin with the obvious question of the relationship between descriptivity and law, what exactly does general jurisprudence describe? The answer is clear: the law is consistent with state law. Few people in the case law have found reasons to question this fundamental starting point. In fact, it is striking how rarely the question is asked. Since descriptive theories are rarely constructed to reveal what a particular object is, the question of whether or not a particular phenomenon deserves to be included in its descriptive scope is sometimes treated as a point of contention. An enumeration of the defining and structural features of the law is, of course, an essential part of any theory, but these cannot be fruitfully read as answers to what a particular object is, of which most informed observers will have at least a relatively clear preliminary idea, and a theory is primarily intended to clarify rather than identify. Because people have a “fairly general ability to recognize and cite examples of laws” and much is “commonly known about the standard case of a legal system”.6x Hart, The Concept of Law, 4. Divergent cases cannot lead to confusion on the question “What is law?” because “it is perfectly clear to everyone that it is their deviation from the standard case, which makes their classification questionable. It`s no secret. 7x Ibid. See also Joseph Raz, “Two Views of the Nature of the Theory of Law: A Partial Comparison,” idem, Between Authority and Interpretation (Oxford: Oxford University Press, 2009), 57: “Explanations deal with confusing or troubling aspects of concepts, and are therefore almost always `incomplete.` The relativity of good explanations of the interests and abilities of its audience makes it transitory and explains why philosophy has a never-ending task.
Traditional legal pluralism has directed its criticism mainly towards two aspects of jurisprudence. First, as far as method is concerned, she dismissed her idiosyncratic understanding of descriptivity as a misnomer: from the point of view of empirically informed social research, the typical form of speculative and conceptual investigation of jurisprudence is descriptive in name only. Second, legal pluralism substantively argues that a plausible empirical representation of social life based on norms cannot be limited to an examination of the legal norms of the State alone. The two points are sides of the same coin. The non-empirical conceptual inclination of jurisprudence, which takes the primacy of constitutional law for granted, is partly a cause, partly a consequence of its inability to adequately absorb the results of empirical research. In this context, we can better understand the implications of globalization on (legal) higher education. Two recent papers have attempted to describe the implications of these developments for the hartian-razian model of institutionalization.67x Detlef von Daniels, The Concept of Law from a Transnational Perspective (Farnham: Ashgate, 2010); Culver & Giudice, Limits of Legality. In their Legality`s Borders, Culver and Guidice build their argument around the concept of “legality,” which directly targets the hartian-razian model. While Hart`s view of law as a system of primary norms institutionalized by secondary rules has traditionally been considered a paradigmatic example of legality, the authors argue that any plausible understanding of contemporary “prima facie” legal phenomena will include, among others, “national legality, transstate legality, suprastate legality, and superstate legality.” How has the concept of legal pluralism been adapted to the demands of globalisation? In the next two sections, we will discuss two versions of the resulting concept – “global legal pluralism” – that roughly fit the above distinction between normativity and institutionality.