10. Reconciling Legal Traditions: Sustainable Diversity in Law
10. Reconciling Legal Traditions: Sustainable Diversity in Law
- H. Patrick GlennH. Patrick GlennPeter M Laing Professor of Law at McGill University, Montreal
The legal traditions of the world contain large amounts of information relating to human conduct as well as a large amount of theory, or at least second-order information, about themselves and the relations which each of them have with other traditions. This chapter discusses the multiplicity of traditions, normativity in legal traditions, and sustaining diversity in law.
The legal traditions of the world thus contain very large amounts of information relating to human conduct. They also contain, however, a large amount of theory, or at least second-order information, about themselves and the relations which each of them has with other traditions. A theory of traditions might then be a difficult thing to construct, from scratch, but it turns out that you can learn a lot of theory relating to traditions from the traditions themselves. This would include the (very) theoretical teaching on tradition being developed in the west, but also the more grounded teaching of each tradition on how it gets on with the rest of the world. So we may end up, as did Professor Popper, only working ‘towards’ a theory of tradition,1 but this is how the traditions would have it. There is just too much diversity out there to conclude on any given single answer, or theory. We should be on the watch, though, for commonalities which advance the project of thinking multiple traditions.
The Multiplicity of Traditions
In looking at (only) seven legal traditions of the world, it has been impossible to avoid the existence of other recognizable legal traditions. Some might say the other legal traditions are minor ones, which complement or oppose the traditions which have been examined. This may or may not be accurate, since there are no well-established criteria for distinguishing major from minor traditions, in law or in any other field of endeavour. If the traditions in law which have been examined here (chthonic, talmudic, civil, islamic, common, hindu and confucian) appear presently as the major ones of the world, it may be that this is only a conclusion of first impression, and that there are other legal traditions—of thought, of expression, or of sources—which are still more profound and which await investigation, and recognition, as being of primary importance. Recognition of any legal tradition thus involves choice (hairesis)—choice of the defining elements of the tradition, choice in evaluating its importance and the extent of adherence to it, choice in determining its origins (or decline and disappearance). Isolating a tradition in this way means attempting to separate it from others, and once this effort has been made all that which has been separated out is free to reconstitute itself as supporting, or complementary, or opposing, tradition. So the separation we seek to bring about, for purposes of clarity and recognition, is immediately challenged by information which is inconsistent with the separation we have chosen. This process may not be as random or as arbitrary as it may initially appear. There do appear to be commonalities. They relate first of all to the manner in which traditions, in law, multiply. They appear to do so both within the context of other, established traditions, and also in a way which is lateral or pan-traditional, recognizable in a discernible way in whatever other traditional context they may be found.
Some very old, long-recognized traditions exist within other (major) traditions. There are endless, particular, chthonic legal traditions, as varied as the means of living harmoniously with the world. They have names, which are the names of chthonic peoples, such as Iroquois, or Aztec, or Masai. Talmudic law knows, among others, sephardic and ashkenazi traditions, and the traditions of orthodox, conservative and reform jewry. There are traditions within these traditions. The civil law has known traditions of the ius civile, of the ius gentium, of Bartolus, of Cujas, of rhetoric, of constructive rationality, of dissent, of the civilian states which have each given to civil law a particular form of expression. Islamic law has its islams—sunni and shi’ite—and its schools—the Hanafi, Maliki, Shafi and Hanbali, and there are the regional variants, the accommodation—even incorporation—of local, informal, tradition. The common law has its ‘customs’, its writs, its now-incorporated Equity, its tradition of judicial restraint (or activism, if you prefer) and now extends in diverse national form to many different societies. Hindu law too has its sadachara (the practice of virtue) and its schools—the Mitakshara and the Dayabhaga—and continues to float over, and govern, those who have their particular ways. Confucianism knows both li and fa, and neither of these places a premium on uniformity of execution; they appear compatible to some extent with both buddhist and taoist attitudes to legal ordering.
These are all traditions internal to one of those we have examined, in some cases supporting, in others opposing, the leading or primary version of the larger, or major, tradition. They are forms of internal dialogue or argument, known so long that they have become identifiable by name—shorthand references to whole bundles of argument (as with the maxims of Equity) which achieve some form of incorporation into the larger tradition. Even when they contradict the larger tradition they have become in most cases indispensable parts of it, providing correction judged necessary or variation judged unavoidable. There are many internal traditions, in law, other than these historically recognizable ones. There are others less recognized, and you will know, whatever your (primary) legal tradition, of other principles and institutions which have earned adherence over time and performed valuable service, for some or many. These too are forms of tradition—of information adhered to over time—and there is no way of limiting the notion of tradition to any definitive list of those which are somehow established. There is no hierarchy and no canon, only hierarchies and canons, and resistance.
There are also, arguably, the ‘young traditions’, the goslings of the traditional world, those which may (already) have been originated but which lack the accumulated ‘pastness’ which allows us to verify their staying power. These young, internal traditions seem to appear most often in traditions which value effort, originality or ijtihad, often along with aristotelian forms of logic. So we have the current shi’ite efforts to create a doctrine of the islamic state, or a contemporary legal cadre for islamic banking. The civil law world has known movements of ‘libre recherche scientifique’,2 of ‘Freirecht’3 (both perhaps expired), of interest analysis (‘Interessenjurisprudenz’)4 and of ‘alternative’ forms of thinking law and commenting on law.5 In the effervescent common/civil law world which is the U.S.A. there are many movements in law, which may be a sign of intellectual strength or a sign of intellectual weakness.6 There is a movement which would analyse law in terms of its positive and utilitarian characteristics (law and economics);7 another which would align it with feminist thought (feminist legal theory);8 another which would unmask its arbitrary and indeterminate methods (critical legal studies);9 another which would unearth its empirical foundations (law and society);10 yet another which would situate it generally in postmodern or after-modern society (postmodernism and law).11 Are these traditions in law, legal traditions, or do they represent something eventually antithetical to law, at least as it has (traditionally) been thought?12 We may eventually know. They are in any event presently internal to western law, though there are reflections of all of them (in varying strengths) in both common and civil law traditions.
There are also further, recognizable traditions which are not particular or internal to any given, larger tradition but which seem to run across many larger traditions. Casuistry is one such tradition, with deep and explicit roots in roman, talmudic, islamic and common laws (and perhaps hindu law, though there is the poetry). Nor would chthonic ways or confucian li stand opposed to casuistic thinking, though neither would track its exercise. Analogical reasoning or qiyas is also fundamental and explicit in traditions which seek to limit, subtly, judicial creativity (as in talmudic, islamic and common laws). Notions of inter-generational equity are very present in chthonic, hindu and confucian law, while contemporaneous notions of equity are explicit in both civil and common law, talmudic law (‘acting inside the law’) and islamic law. There is a tradition of constructive rationality in law, of ijtihad, most marked in western law (civil and common), the object of passionate debate in islamic law, of bemusement and scepticism elsewhere. Fundamentalism is a lateral tradition, in the name of particular gods, particular texts, particular principles (such as rights).13 There are also traditions of professional role—those of the adjudicator (decisor, iudex, judge, qadi) or, less frequently, of counsel (advocate, barrister, attorney or simple adviser).14 And there are the undefended, but practised, traditions, of racism, of crime, of unthinking and spontaneous antagonism to the other, however defined.
There are two other large, important lateral traditions. One of these is a tradition of universalism, or universalizing. It may take the form of a particularly aggressive form of fundamentalism; it may be more subtle and insinuating. In all cases it is characterized by an ineluctable pressure to spread and solidify particular teachings, which themselves are formulated, or capable of being formulated, in universal terms. Peace, God, rights, understanding, metaphysics, are all capable of universal formulation, indeed may only be capable of universal formulation. There may be no major legal tradition (even that of hindu law) which is free of universalizing tendencies. The other tradition is one which has been referred to throughout the discussion thus far as a tradition of tolerance. There is a problem of language here, which will have to be returned to, but it is evident that a tradition of tolerance of other traditions will exist in constant tension with a tradition of universalism, and that both will exist in varying degrees within a particular major tradition as well as existing across all traditions. If major legal traditions are to co-exist in the world, without themselves contributing in a major way to violence, imperialism and suppression, it therefore seems necessary to examine somewhat more closely the teaching of different traditions with respect to universalism and what is known in the west as tolerance.
Traditions appear to differ amongst themselves with respect to whether they must be universalized. Some traditions appear more aggressive than others with respect to their own expansion. This may flow from what a tradition explicitly teaches, or from what its adherents, or some of them, take to be its implicit teaching. At the core of the universalizing tendency of any tradition is necessarily its normativity. If it makes no claim to normativity, it will have little claim to universality. Binding no one can scarcely give rise to a claim to bind everyone. The nature of the normativity of each tradition is therefore an essential feature of its potential universality. Whether a given tradition is universalizing, however, will be a question of how it reconciles its own normativity with its own tolerance of other traditions. This latter question raises the general issue of the complexity of traditions, of how traditions manage their relations with other traditions. Here as well there appear to be commonalities.
The normativity of tradition
Western theory of tradition teaches that all tradition is normative, that is, that it provides a model, drawn from the past, as to how one should act. Legal traditions, of all traditions, should not depart from this general phenomenon, since law is perhaps the most normative of human endeavours. There are clear differences, however, amongst legal traditions in terms of the extent to which they claim to regulate human conduct. Chthonic law doesn’t appear to regulate much, yet in proscribing all conduct incompatible with a recycling cosmos its normativity is unquestionable. Talmudic and islamic law regulate most of life; they are normative in all directions (though the jewish religion is not a proselytising one). The civil and common laws are laws of liberty; both have existed as optional, suppletive forms of social regulation, allowing some form of escape from congealed patterns. In modern guise, they would both to some extent deny the normativity of their own pasts (reconstructed as fact), both directing attention to a more limited form of current or present law. Yet underlying notions of intellectual liberty, rights and institutional integrity are inherent and highly normative features of both, however notions of liberty and rights may contribute to present disruption. Hindu law allows a lot of choice, both individually and in terms of multiple informal traditions, yet no one who is hindu would escape some form of law recognized as hindu. East Asian traditions reject much formal law, but do so in favour of another type of normativity, one profoundly anchored, informally, in the past.
So in spite of some confusing signals, normativity is a constant feature of these legal traditions. Even in the western ones, where liberty is most prized, it is often constrained, and where it is not it assumes its own normativity—the obligation to be free and to exercise one’s rights. The indecision of relativism is a problem external to these traditions; they do not acknowledge it. Relativism would be a problem, however, where legal traditions meet. It could be avoided by universalism—by insisting on the normativity in all cases of one’s own tradition. If one refuses universalism, in the name of some form of tolerance, how does one avoid the indecision of relativism? How is this question dealt with, in the traditions?
The legal traditions which have been examined all contain sub-traditions, either purely internal ones or lateral traditions. This appears to be another perspective on the multiplicity of traditions; they nest (like Russian dolls) within one another, such that the largest can even be said to be composed of a series of supporting, complementing, even recalcitrant, sub-traditions. The largest, major traditions would therefore be large and major because of their complexity. They succeed in bringing together, in the name of some important principle or being, a number of identifiable other traditions, providing some form of overarching cohesion. This notion of a complex tradition has been identified in western literature.15 The study of complex legal traditions may add to its understanding.
How are major legal traditions complex and how do they explain their own complexity? They are complex (from the Latin ‘complexus’, i.e., ‘with interweaving’) in incorporating multiple internal and lateral traditions which are not consistent with each other and which may not even be consistent with the leading version of the major tradition. Complex traditions thus reach the stage of complexity, and of being major traditions, because of their ability to deal with diversity, contradiction and demands for what is usually known as change. They are epistemologically complex. The theoretical recognition of tradition as a factor of change16 would therefore be a recognition of the underlying complexity of major traditions, which are constantly in the process of reconciling sub-traditions of stability and innovation, or sub-traditions opposing one another on other grounds.
The complexity of major legal traditions, moreover, is a fundamental part of their own teaching, of their own understanding of themselves. Chthonic tradition allows great diversity within itself, giving quiet approval to all chthonic ways, and even change of them, on condition of ongoing respect for the natural world.17 Talmudic law knows its principle of ‘These and these’, which both, though contradictory, represent the word of God,18 and in the ongoing, often contradictory, talmudic debate, there is constant re-affirmation of the larger synthesis of the Perfect Author. The civil law has always known multiple, and contradictory, versions of itself—from the ius civile and ius gentium of Roman times and the later tension between local, chthonic ways and the ius commune, through emergent then flourishing national legislation, to the ‘fuzzy’ relations emerging within the European Union.19 Islam has its ikhtilaf, the doctrine of diversity (the trees and branches, the rivers and seas, the threads and garments) and an entire hadith, that ‘Difference of opinion...is a sign of the bounty of God’.20 The common law co-opted local diversity, leaving juries to their own devices then, as ‘chaos with an index’, accommodated, then integrated, ecclesiastical, Admiralty and Equity courts and case law, before going on to its present, trans-oceanic diversity.21 Hindu law gives pride of place to local law, since Brahman infuses all, never dividing, never separating, essentially advita (non-dual) and allowing hinduism to be a ‘Commonwealth of all faiths’, an illustration of the fundamental unity of the world.22 East Asian normativity knows the ‘middle way’ of buddhism; the infinite, related, gradations of confucianism; the massive effort of intellectual integration—of individuals and groups, of relations and autonomy, of self-worth and common effort.23
All of these complex, major traditions thus achieve complexity because of their proven ability to hold together, to sustain, mutually inconsistent sub-traditions. They all involve a particular way of thinking, which has become explicit in some of them though remaining implicit in others. It is a way of thinking which has been described as multivalent,24 as opposed to bivalent, because sub-traditions are not either right or wrong but may be right in different, multiple (inconsistent) ways. The traditions are hence multivalued. Multivalent logic has traditionally been associated with hindu and other Asian thinking, bivalent thinking with western thinking, yet all major legal traditions, Asian, western and other, appear built on multivalent thought. What characterizes multivalent thinking and how is it distinct from bivalent thinking?
Bivalence and multivalence
Bivalent thought involves the proposition that you can’t have your cake and eat it too.25 It involves an initial dichotomy or bivalence but is univalent in the end result. Most people say the idea is aristotelian (though Aristotle too built on what was known, or thought to be known) and involves a formal, logical rule: that of the excluded middle. Between two contradictory things, there is no middle ground (no buddhist middle way). In formal language, it is always ‘[A] or [not A]’. The middle ground is excluded by sharp and immediately contiguous boundaries between [A] and [not A], so the rule could also be expressed as [A][not A], with no space between the two.26 Asserting [A] and [not A]’ would be asserting contradiction, a blurring or overlapping of that which is distinct.27 It would be trying to have your cake and eat it too. Bivalent thought thus implies clear boundaries between distinct and separate concepts, and prevents mixing and confusion over the boundaries, once they are created. It is very logical, in the way western people have been trained to be logical, for a very long time. Plato is probably the original source, since he taught that the path to understanding involved divisio, the constant division of any concept into two constituent parts.28 Plato is the father of the dichotomy, a form of logic which has acquired the force of tradition.29 Much east and south Asian thinking, however, has never been very impressed with the idea of a world divided into distinct and separate, often inconsistent, elements.30 This thinking would challenge, not the idea of inconsistency, so much, as the process of drawing boundaries or separating distinct units of whatever is being discussed. It would say separation is artificial (‘undercomplex’) and ignores the complexity of the real world, where everything is really a matter of degree rather than of sharp boundaries.
The Greek philosophers knew there was a problem here, and treated it as a paradox (which is what you do when you can’t explain something important). One of the examples of the paradox was that of a heap of sand (heap in Greek is ‘soros’ so it is the sorites—sor/ite/ease—paradox). If you withdraw a grain of sand at a time from the heap, at what point do you no longer have a heap? To use a (slightly) newer example, at what point, exactly, did Rembrandt become old? Well, you might say, these are vague categories so of course you can’t escape some of these paradoxes, which will exist whenever your categories are inherently vague. The challenge of multivalence, however, is a very large one. It asserts that all categories are vague, given inherent vagueness of normal language, and that all efforts of separation are arbitrary and artificial.31 This would even extend to the physical world, where sharp, physical boundaries are now dissolving under the close inspection of quantum physics. Everything would be a matter of degree. You can have your cake and eat it too, if you eat only half of it (though we’d better say some of it, since we can’t be sure where the half-way point would be).
Bivalent logic is behind much of the construction of the western world (and is ferociously defended), but various forms of multivalent logic are now being taken seriously in western theoretical thinking. In the early twentieth century a philosopher, Peirce, argued for ‘many-valued’ or ‘triadic’ logic (true, false or somewhere in between), and philosophy is now taking seriously, and very precisely, the problem of vagueness.32 In mathematics, the theory of sets would now recognize partial membership in one or more sets at the same time, a phenomenon giving rise to ‘fuzzy’ sets and more generally to ‘fuzzy’ logic, as it has come to be known in English, though the appellation would have something still rather pejorative about it.33 In technology, multivalent logic now permits smoother machines (such as air conditioners which don’t go clunk in the night as they move across the excluded middle between different commands).34 There would thus have been a ‘multi valued turn’ in logic35 and there has been some explicit recognition of the idea in law, in the ‘fuzzy’ legal relations of national laws under pan-European norms,36 in an international ‘lex pacificatoria’37 and in some areas of substantive law, such as security interests.38 In all of these cases there is recognition of a once-excluded middle. The middle becomes recognizable once you recognize the real subtlety of the world, once you recognize the detailed information which the hasty drawing of boundaries, the separation, would exclude. The more information you have, the less separation, the less potential conflict there is. Multivalent logic is not really fuzzy. It is very precise, very informed, and highly particular. It insists on more information, in dealing with the fuzziness and complexity of the real world. There is something of the casuistic in it, in its methodological insistence on detail.39
Casuistic legal traditions consequently have the potential to become major and complex legal traditions, and some of them have made this transition, using their own casuistry to move above and beyond competing, internal sub-traditions. Other major legal traditions, such as those of the civil and common law, have in the last two centuries placed less emphasis on casuistry in their internal workings (particularly within modern states). Yet there are indications here of re-thinking,40 while in their full dimensions, modern civil and common laws are necessarily complex. They must reconcile and sustain different rules, different solutions within a single, transnational tradition. Casuistry, particularity, greater and more detailed information: all become essential in this process. Civil and common law lawyers have been multivalent without talking much about it. The major, complex traditions of the civil and common laws are the proof of it. They both display a great deal of internal tolerance, as do other major, complex, legal traditions. Or is tolerance really the right expression?
You could say that complex traditions are by nature tolerant ones, but there is something slightly bizarre about using the idea of tolerance within a tradition. It’s a little like saying, whether you are left-handed or right-handed, that you tolerate that other hand. Toleration, it seems, should be reserved for that which is really external, different, strange, even radically wrong or, for some, evil. And most teaching about toleration, in the west, says essentially that. The idea of toleration seems to have been developed as a result of western religious conflicts, and eventually came to say that even though other beliefs were profoundly wrong, even evil, there were reasons for not attempting to stamp them out, such as the sincerity of those who held them (Locke’s argument), or the personal autonomy of belief (an enlarged, liberal view) or the need to suppress violence.41 So the western idea of tolerance is ultimately a very unstable one (some would say an impossible one) since it teaches that we may continue to detest, though we value autonomy more.42 It turns out to be a very western idea (not articulated as such elsewhere), and it has been said, for example, that ‘it is very misleading to transfer a concept that is indigenous to eighteenth-century Europe to India and say that Indians believed in toleration’.43
So toleration doesn’t seem to be the right word, or right concept, in describing the complexity of major legal traditions. They are complex, not because they are tolerant, but because they build real bridges. They don’t just tolerate, they accept, in spite of difference. They are genuinely multivalent in refusing to categorically condemn and exclude. They construct a middle ground for the tradition, one which allows ongoing reconciliation of its inconsistent poles, themselves taken as exclusive and categorical by those we designate as fundamentalists (of all traditions). The better notion seems to be one of interdependence,44 or of non-separation, and this emerges as the most basic idea in the existence of major, complex, legal traditions. It is the fundamental, underlying characteristic of multivalence.
The notion of interdependence between elements of complex traditions also tells us something about commensurability and relativism. If there is interdependence, and hence sharing, there is commensurability. Incommensurability has no place, if it has a place anywhere, within complex traditions. They are complex traditions because of their ability to overcome arguments of incommensurability, and to hold the larger tradition together. And if there is no incommensurability within a tradition, if all of its elements are constantly engaged with one another—in conversation, dialogue or argument—then there is no place for the indecision of relativism. Complex traditions do not allow you to say, ‘I cannot choose between these two irreconcilable, incommensurable positions’. The complex tradition tells you they are not irreconcilable; that they both have a claim to your loyalty; and that there are a large number of reasons (which you must consider as an adherent to the complex tradition) for deciding in a way which may favour one or the other of them, in the circumstances of your case. Complex traditions thus do not acknowledge relativism because they cannot. Their whole structure is one which multiplies the arguments and means of decision-making, given the existence of differing views, internal to the tradition. Traditions are normative; complex traditions are irresistibly normative. There is still a problem, however, in terms of the relations of complex traditions between themselves.
Reconciling complex traditions
A tradition which is internally complex nevertheless maintains some form of external coherence. This is what allows us to identify a complex legal tradition, such as those examined in this book. So if complex legal traditions overcome questions of incommensurability or conflict within themselves, these same questions of incommensurability or conflict may arise between complex traditions. They have identities, if not precise boundaries, and some might say that it is possible to exclude any middle ground between them, as in asserting, for example, that a religious legal tradition is incompatible or incommensurable with a secular legal tradition.45 To what extent does the nature of a complex legal tradition speak to the relations between complex traditions? What do the traditions tell us?
The first thing they appear to tell us is that their identities are not mutually exclusive ones. The information which defines them is not impregnable. The proof of this would be in the lateral traditions which are recognizable, in nearly identical form, in multiple, complex traditions. Traditions of casuistry, or inter-generational equity, or equity tout court, or professional role, unite their adherents across the complex traditions which they may see as their primary traditions. The lateral traditions thus constitute a kind of horizontal webbing, through and across the complex traditions, such that the complex traditions themselves nourish and support certain forms of their own interdependence. The lateral traditions are of course in no way limited to those identified here. They exist in general and detailed form across the entire range of what we know as private or public law.
There is, however, a larger and more important way in which the nature of a complex tradition affects the relations between complex traditions. The theoretical teaching of tradition in the west has already stated that any contact between traditions involves exchange of information. If something is known to be out there, it is already in here.46 The simple existence of information derived from another complex tradition thus blurs the distinction between the two traditions. Moreover, if the information is in here, it becomes subject to the multivalent, bridging, complexity of the receiving tradition. It must be dealt with. It may be the object of rejection (requiring reasons), limitation, accommodation or even adoption. The complexity and multivalence of the receiving tradition prevent the information from being somehow, simply, walled off or cabined.
What this means is that complexity and interdependence is not a phenomenon which is purely internal to complex traditions. Complexity and interdependence necessarily characterize the relations between complex traditions as well. How can a complex tradition, composed of multiple, competing sub-traditions, informed by lateral traditions shared with other traditions, and existing as a complex tradition only because of its ability to bridge multiple, simple traditions, somehow renounce its complexity in favour of a single, universal truth? This is what fundamentalists seek to do (in all traditions). They elevate one truth, or one tradition, to exclusive status, and seek to impose it.47 Fundamentalists may thus act in an imperial or aggressive or violent manner. In so doing, they do not reflect the entirety of their own tradition. Nor do they represent a truth which has the potential of becoming a major tradition in the world. It is, as interpreted, insufficiently complex to attract support across the wide range of human opinion. Complex traditions are therefore by their nature, and in their leading versions, non-universal and non-universalizing. They offer many grounds of accommodation with other complex traditions. The larger and more complex the tradition, the less dangerous it is for others. Fundamentalism is always, and necessarily, a limited phenomenon and a limited threat.48
The interdependence of complex traditions is evident both from the difficulty in defining the starting points of major legal traditions (even the prophets retain much of previous law, now revealed) and by the ongoing, major forms of communication and debate between complex traditions. Chthonic law is used to criticize civil and common law dealing with the environment. Islamic law criticizes civil and common law jurisdictions for their treatment of the poor and the persecuted; western lawyers criticize islamic criminal sanctions and its limits on human expression and speech. Talmudic law knows that the law of the state is law, and may even incorporate some of it, while itself being cited as a different (and perhaps better) model of law than state law. Civil and common law jurisdictions ‘borrow’ from one another, or create ‘mixed’ jurisdictions,49 and these processes now appear as western and formalized versions of the exchange of information between complex traditions, or common laws,50 which has always gone on, in a massive way. Hindu and confucian law have yielded to much state law, while retaining their normative identity. Where is the core of any of these major traditions which could supplant all the law of the rest of them? The answer would appear to be that there is no such universalizable core. This is good news for the sustainability of the major, complex, legal traditions of the world.
Sustainable Diversity in Law
The multivalence of major, complex legal traditions, and the interdependence between them, has necessary consequences for their ongoing survival. There is, of course, no guarantee of survival, and there are concerns within some major legal traditions as to their ongoing identity or viability. There are certainly highs and lows, moreover, in the persuasive power of each tradition, as lives go on. Yet multivalence provides an ongoing stability for major traditions which is lacking in the case of simple or minor ones, or in the case of various legal ‘movements’. Multivalence allows for movement within the tradition itself, such that disaffection in one of its branches does not imply exit on the part of those disaffected, or an overall loss in adherence to the major tradition. It is the advantage of the big tent.
Multivalence within a tradition is also an inherent limit on its external expansion. Internal ambiguity creates doubts about external expansion. What, exactly, is to be expanded? Why is it necessarily superior to competing internal views, and to competing external views? These doubts—which multivalence welcomes—are reinforced in the case of relations between major legal traditions by the strength of the arguments which each of them raises. They all represent truths—ecological ones, religious ones, ethical ones, rational ones—and each represents enormous effort over a very long period of time to give effect in human lives to these truths. So each major, complex legal tradition provides something to the world which the others do not and probably cannot, and each eventually comes to recognize this. There may therefore be, after many thousands of years of legal history, some (general) point of stabilization of major legal traditions.51 There have to be legal traditions which are major, since there are major themes for such traditions. Since the themes persist, the major traditions persist. They each remind us of something important; they each must qualify and limit their own teaching (the cost of complexity); they each provide social ordering in the world which the other traditions may be unable to provide; they each contribute to necessary diversity.52 So legal diversity looks like it will be with us for a long time. It is sustainable, and perhaps there should even be efforts to sustain it.
If diversity in law, on a large scale, is compatible with all major legal traditions, and is perhaps even inevitable or natural (though this would be a very large claim, not explicitly found in the traditions themselves), then there might be no point in efforts to sustain it. It would just happen, in spite of anything we did. So we could all be free to be universalizers, or imperialists, since we wouldn’t succeed and we would know what to believe in, in the meantime. Two answers seem possible to this argument.
The first is that the case for natural, harmonious diversity might be overcome, if enough people decide to act on contrary assumptions. Then it is likely that a great deal of damage would be done, in order to ensure the eventual dominance of a single tradition in the world. There is, moreover, considerable learning (survival of the fittest, competition theory) which suggests that we are all constantly in the process of attack or self-defence and that some form of lasting dominance may be possible.53 And it may be, if everyone decided to act as aggressively as possible in pursuit of a single truth, that a world of ongoing violent conflict, interspersed by periods of hegemony, could be brought about. So resisting diversity in order to rule the world might turn out to be a strategy some would call correct, and harmonious diversity could be overcome. If this is the case, then the reasons for acting in a way which supports sustainable diversity in law are the reasons for avoiding the pursuit of, and the installation of, world hegemony. They are reasons relating to the cost and suffering of world conflict; to the difficulty in maintaining any sort of world hegemony (as shown by the survival of traditions); and to the ultimate benefits of sustainable diversity.
The second answer is perhaps more realistic. It says that there will be sustainable diversity in law in the world, and that all the efforts of all the universalizers (of all traditions) will now not succeed in disrupting it. So the argument says you should go with the flow. Running against it will cause damage (major damage, though perhaps not global damage) and will bring only minor and temporary gains. In contrast, working within the cadre of diverse legal traditions, and knowing how to do so, can provide equal or greater benefits to whatever cause is being advanced. Traditions are agents or factors of change and innovation.54 They provide all the levers which are necessary.
So there are reasons for acting positively, for sustaining diversity and not simply allowing diversity to sustain itself, as it might.55 Sustaining diversity means accepting (not tolerating) the major, complex legal traditions of the world (all of them). It means seeing them as mutually interdependent, such that the loss of any of them would be a loss to all the others, which would then lose a major source of support, or at least of self-interrogation. It means seeing all traditions as one’s own, in some measure, since each is dependent on the others. It means seeing dominance, and efforts to obtain dominance, as a form of corruption of all major legal traditions, which exist as varying forms of equilibrium. It also means seeing your own, particular tradition (or at least the tradition or traditions to which you are most attached) as secure, as beyond repression by any means which could be successful in any lasting, meaningful way. It’s not just the others’ ways of thought which are secured. It’s also your own. So western, bivalent thinking does not somehow have to be abandoned, within western legal traditions.56 There need simply be recognition that multivalent thinking also exists, in other legal traditions and even as a major, constitutive element of western legal traditions themselves.
Acting positively to sustain diversity in law should improve communication between lawyers of the world. It should enhance the prospect for peaceful settlement of disputes, enhance the legal mission. Individualistic traditions may borrow, and use, informal notions of normativity to complement themselves. Collectivist traditions may borrow, and use, instruments of self-empowerment, again to complement themselves. All in the limits they judge acceptable. All according to the constraints of context.
Recognition and acceptance of the diverse legal traditions of the world has implications for the identities which people in the world give themselves. Recognition of other traditions as partially your own means adhering, however partially, to those traditions. It means identifying with them in some measure. Identity then becomes less clear than it was before (partial) adherence to another tradition. Identity is fuzzier, more multivalent; there are more loyalties claiming your attention. At the same time, in accepting more traditions there is more awareness of them, of their detail and variation, such that the other is less obviously and clearly the other. There are certainly others, yet they appear in greater variety and it becomes less easy to group them in monolithic blocks. Large forms of animosity become more conceptually difficult. There are too many groups out there, too much variety. How do you keep track of it all? How do you conceptually deal with ongoing diversity?
The ways of diversity
Multivalent thinking tells you to keep in mind the sources of conflict, that is, the large, inconsistent principles, the sources of alleged incommensurability, the ideas which people use to (differently) identify themselves. This is not hard to do, since these are the terms by which conflict is usually defined, and the parties to disputes will often want to talk about little else. Multivalent thinking tells you, however, that these opposing principles really only serve to define the field of play. They tell you where to find the middle ground, and there is always a middle ground. To find the middle ground you need more information. You need the detailed information which disintegrates boundaries (it’s just like quantum physics).
There are two valuable sources of further information. One is within the conflicting traditions themselves. They do not themselves solve disputes by invoking world views. They are complex legal traditions because they succeed in reconciling different theoretical views in the cadre of specific dispute resolution. So what nuances do they themselves allow in application of their most important principles? What sources of differentiation are possible, since they are already recognized in the sources of the present antagonism? If you are in a mediating position, you may have to do this research yourself. Those engaged in a dispute, in advancing a position, will not voluntarily and immediately advance a range of fall-back positions. They may not themselves have come to recognize them, in the rush to present a united front. The second source of information comes from what western lawyers call the facts. In other legal traditions there are no facts, just sacred or vital ways of life, which have their own, internal normativity. If you know enough of what went on, goes the argument, a solution will eventually suggest itself. Arbitrators know of this. The solution will be for this case, which will have inspired its own form of resolution. So the more you know about your dispute, the more you will be able to map where it is in the middle ground and the closer you will be to having the parties recognize the middle ground. They will be better informed. Increasing the information means reducing the conflict.
If you are a lawyer you will probably recognize this technique of dispute resolution. Its use indicates the extent of multivalence which already characterizes your legal practice, even if the legal theory of your tradition tells you that cases are decided by application of a single, pre-established rule. Some examples of multivalent practice at the level of different legal traditions may, however, be useful.57
In the field of public law the most visible example is the work of the European Court of Human Rights in developing a ‘margin of appreciation’, or ‘margin of discretion’, in determining whether European national laws (of civil or common law origin) are compatible with the European Convention on Human Rights.58 The multivalent character of this process appears unquestionable, since the European states are allowed a zone of latitude in the measures they take in protecting, or threatening, the rights guaranteed by the Convention. The case law of the European Court of Human Rights thus does not require a binary choice between a national law and a univocal interpretation of a right guaranteed by the Convention. In the process of adjudication under the Convention two distinct processes appear discernible. The first is the judicial affirmation of a margin of appreciation on the part of European states. This functions primarily as a declaration of judicial impartiality towards claims of national sovereignty and the paramountcy of the Convention. Recognition must be given, in a multivalent and sustaining manner, to both, and the manner of doing so is to acknowledge a range of national means of complying with the Convention. Such an affirmation of a margin of appreciation does not in itself solve individual cases, but it is recognized that the margin of appreciation may be ‘wide’ or ‘narrow’ depending on the particular right invoked, and presumptive conclusions may follow from the breadth of the margin recognized.59 The U.S. Supreme Court speaks correspondingly of different ‘levels of scrutiny’ of state law, depending on the type of discrimination challenged under the equal protection clause of the Fourteenth Amendment to the U.S. constitution.60 Rights are not absolute; they are fuzzy or indeterminate and require specification in individual cases.61 The second process under the European Convention is more laborious, and requires determination, given the appropriate margin, of whether a particular law nevertheless violates the Convention. In the established middle ground there is still work to be done and criteria must be developed as to where, exactly, a law is situate within that middle ground. Currently the language of proportionality is used (principally whether the national measure involves no more than is necessary to accomplish the objective), and while this criterion leaves much to be argued about in individual cases, it appears to be an advance on alternative language of ‘reasonableness’ or ‘balancing’ (a multivalent though purely metaphorical notion).62
The international debate over human rights can be framed as one of the validity, or not, of the idea of human rights. This is related to the idea of their universality. Yet rights in western thought are not absolute, are often denied (as in English common law for most of its history), are frequently expressed as group rights, and vary in their national or regional implementation (the nuances internal to the traditions).63 So the debate about whether human rights are respected can take as a given that human rights exist, and other legal traditions now do so in formulating their own versions of human rights. It must also be a given in such debates, however, that there are alternatives to rights in other traditions, which are advanced with as much persuasion and as much intensity, as means of advancing human dignity. A former President of the Federal Republic of Germany has argued the case for multivalent thinking in the international human rights debate. All major human traditions, has said Roman Herzog, have an ‘ethic of humanity’.64 In resolving debates about the treatment of human beings we must carry forward, not relativize, the human rights debate, but the most effective technique is that of examination of particular problems in detail and given the circumstances of each country. What is the most effective, general idea in the circumstances in which decisions must be made? How is human dignity advanced, in this case, by invocation of general concepts, including that of dignity itself?65 The international regime of human rights may be seen, moreover, as a complex regime, the theory of international regimes now being advanced as a supple, inclusive, conciliatory technique for ongoing resolution of international disputes.66
To turn to private law, there is an ongoing, international debate about whether parties to contracts (usually international ones) are free to choose the law applicable to their contract. Some say it is the parties who make contracts (the law follows the deal, as in many of the traditions examined here) so party choice is paramount.67 Others say it is the state which gives binding effect to contracts, so no contract is above or beyond state law, and any choice expressed by the parties is only one factor in a process of objectively deciding which state law must govern the contract.68 These are two, large, opposing principles; either party choice prevails or state law prevails, and there are no other options. In the European Union, it was decided that there should be a pan-European law which determines the law applicable to contracts. The resulting Regulation (Rome I) on the Law Applicable to Contractual Obligations is an example of a multivalent legislative text.69 It explicitly recognizes the validity of the two opposing principles, and directs attention to the criteria for resolving individual cases in the middle ground. Neither opposing principle is exclusively dispositive of any individual case. To resolve an individual case, both principles must be taken into consideration and an imprecise (fuzzy) standard is set out, the application of which requires detailed information on all of the circumstances of the case.70 European states will exchange further information by way of persuasive authority on how they have resolved particular disputes in the middle ground. The Rome I Regulation has naturally been influential elsewhere in law reform. It is a Regulation (originally an international Convention) which accepts (not just tolerates) opposing views and defines the information needed to function in the middle ground. It is an instrument which deals, not with the conflict of laws (they are disintegrated), but with the conciliation of laws, conciliation being a primary feature of multivalence.
International development is also a field in which multivalent thinking has recently been urged, though perhaps not explicitly. Multivalent thinking is implicit, however, in the entire school of thought which has developed in recent decades and which advocates limits on notions of growth (in accordance with local tradition), and means of strengthening local societal structures (including legal ones) as a means of providing the structures necessary for development. Traditions here are layered, and western ones, to the extent they are received, are adjusted to those which exist already.71 Priority is due to those local ways which most clearly demonstrate their own resilience.72 Markets, in any event, are not absolute. They cannot be made absolute without elimination of the traditions which limit them, and western teaching now acknowledges the existence of legal structures as an essential pre-condition to the functioning of markets.73 The legal structures cannot be identical in the world; this would imply elimination of other major, complex legal traditions. Sustaining legal traditions means restraining market activity, where different legal traditions require restraint. Markets exist, but they are more or less free. It is, again, a question of degree.
Multivalence also appears useful in thinking about contemporary, complex societies, where multiple claims of (legal) recognition are made on behalf of different groups within states, often relying on some form of international or regional guarantee of minority rights. Legal traditions and identities here overlap in very close proximity, and different states respond in different fashion (none is immune from the process). Again, there are conflicting principles, and much of the theoretical debate is in terms of these conflicting principles. On the one hand there is a notion of citizenship which would demand exclusive loyalty to the state and which would relegate other legal traditions, if recognized at all, to the realm of a purely private sphere. On the other hand there is the model of ‘personal laws’, representing co-existence of different legal traditions and groups, which would (perhaps fatally) weaken the structure of the modern state. In the law of the states of the world, solutions are usually found between these two poles. There are many places in the middle ground, most of which accept the continuing relevance of both state citizenship and personal, non-state, legal allegiances. Multivalence in law is the order of the day, whether recognized in political or state theory or not. Recognition of many legal traditions is facilitated, moreover, by their non-legislative character; they do not purport to occupy the legislative field of state law.
There are of course important differences between states. States such as the United States of America and France have (traditionally) placed greatest emphasis on exclusivity of citizenship and loyalty to the state. U.S. law recognizes much chthonic law, however (‘tribal sovereignty’), and the well-known ‘separation’ of church and state in U.S. law has been described as a ‘blurred, indistinct and variable barrier depending on all the circumstances of a particular relationship’.74 In France the principle of secularity has been found by courts to be compatible both with the wearing of religious garb in schools (providing public order—a fuzzy standard—is not violated) and judicial orders designed to compel the granting of talmudic divorces.75 In jurisdictions which recognize personal laws—the application of non-state legal traditions to many questions of personal status, family law and succession—the state, somehow, persists. There are many structures and solutions available, and multivalent thought facilitates the non-violent adoption of them.
2 See F. Gény, Méthode d’interprétation et sources en droit privé positif: essai critique, 2nd edn (Paris: LGDJ, 1919).
3 See E. Bodenheimer, Jurisprudence, rev. edn (Cambridge: HUP, 1974) at 115, with references; J. Herget and S. Wallace, ‘The Free Law Movement as the Source of American Legal Realism’ (1987) 73 Va. L. Rev. 399.
4 See M. Schoch (trans. and ed.), The Jurisprudence of Interests (Cambridge: HUP, 1948). Interest analysis has also been influential in the U.S.A., in various forms.
5 R. Wassermann (ed.), Reihe Alternativkommentar zum Bürgerlichen Gesetzbuch, mult. vols. (Neuwied: Luchterhand, 1980–90).
6 For each of the following, and still more (law and literature, psychoanalysis), T. Murphy (ed.), Western Jurisprudence (Dublin: Round Hall, 2004) chs. 13–19.
7 See R. Posner, Economic Analysis of Law, 8th edn (New York: Aspen, 2010); D. Friedman, Law’s Order: What Economics Has to do with Law and Why it Matters (Princeton: PUP, 2001); much economic analysis of law stems from the basic theme, developed in R. Coase, ‘The Problem of Social Cost’ (1960) 3 J. Law & Econs. 1, that any initial assignment of a patrimonial or property right will not affect its ultimate use, which will in principle (costs of transactions aside) devolve to the person for whom it represents the greatest value. Efficiency then dictates assignment of rights according to such value. For extension of this idea to the process of comparing national solutions, while still recognizing that ‘[t]raditional or cultural factors may be construed as real-world transaction costs...that resist the evolution toward efficiency’, U. Mattei, Comparative Law and Economics (Ann Arbor: Univ. of Michigan Press, 1997), notably at 121. For criticism of economic analysis of law, however, as failing to acknowledge the importance of a prior legal order in which assignments can predictably be made, C. Goodhart, ‘Economics and Law: Too Much One-Way Traffic’ (1997) 60 MLR 1; and for reactions elsewhere in world, K. Grechenig and M. Gelter, ‘The Transatlantic Divergence in Legal Thought: American Law and Economics vs. German Doctrinalism’ (2008) 31 Hastings Int. & Comp. L. Rev. 295 (prior importance of utilitarianism, ‘legal realism’ in U.S.A.); O. Gazal-Ayal, ‘Economic Analysis of Law in North America, Europe and Israel’ (2007) 3 Rev. L. & Econ., Issue 2, Art. 11, at http://www.bepress.com (academic incentives major factor in law and economics scholarship, highest in Israel); A. Stray Ryssdal, Legal Realism and Economics as Behaviour: A Scandinavian Look at Economic Analysis of Law (Oslo: Jur. Forlag, 1995); H.-B. Schäfer and C. Ott, Lehrbuch der ökonomischen Analyse des Zivilrechts, 4th edn (Berlin: Springer, 2005); A. Ogus and M. Faure, Économie du droit: le cas français (Paris: Éditions Panthéon-Assas, 2002) (with speculation on why law and economics movement less influential in Europe; though see E. Mackaay, Law and Economics for Civil Law Systems (Cheltenham: Edward Elgar, 2013).
8 See F. Olsen, Feminist Legal Theory (Aldershot: Dartmouth, 1995); N. Levit and R. Verchick, Feminist Legal Theory: A Primer (New York: New York Univ. Press, 2006), notably ch. 2 (‘Feminist Legal Theories’); M. Chamallas, Introduction to Feminist Legal Theory, 2nd edn (New York: Aspen, 2003), notably chs. 3–5 (Equality, Difference, Diversity Stages). Much (though certainly not all) feminist legal theory is derived from an epistemological position described as feminist which insists on contextual, local, fact-specific analysis, exhibiting a high level of tolerance for ambiguity and multiple voices, while questioning exclusive resort to ‘bright-line rules’ (inadequate in their correspondence with life situations). These views, most notably articulated by C. Gilligan, In a Different Voice, 2nd edn (Cambridge: HUP, 1993), have much in common with many legal traditions of the world and the non-classical logic they represent.
9 R. Bauman, Critical Legal Studies: a Guide to the Literature (Oxford: Westview, 1996); R. Unger, ‘Critical Legal Studies’ (1983) 96 Harv. L. Rev. 561.
10 See Law and Society Rev.
11 G. Minda, Postmodern Legal Movements (New York: New York Univ. Press, 1995); D. Patterson, Postmodernism and Law (Aldershot: Ashgate, 1994); S. Douglas-Scott, Law after Modernity (Oxford: Hart, 2013) (law no longer capable of systemisation, yet justice retained as key issue); yet for the traditional roots of what is known as modernity and post-modernity, Ch. 1, in introductory text.
12 On such ‘twentieth-century apostasies’, S. Letwin, On the History of the Idea of Law, ed. N. Reynolds (Cambridge: CUP, 2005) viii, notably at 198–9 (‘realist’ views of law, requiring explanation according to other criteria, based on unsustainable binary distinction of law as either objectively certain or wholly uncertain); for rejection of ‘antithetical formalist-realist poles that jurists do not actually hold’, B. Tamanaha, Beyond the Formalist-Realist Divide (Princeton: PUP, 2010) at 3; and for rejection of various movements in favour of an ‘unmistakably Kantian’ view of private law, based on a view of parties as ‘free beings who interact with each other as holders of rights’, E. Weinrib, Corrective Justice (Oxford: OUP, 2012) at 5, 7 (for this view of individuals, see Ch. 5, The centrality of the person and the growth of rights). Aharon Barak finds that ‘legal reality is too complex to be adequately captured by any one of these schools of thought’ (adding positivism, legal realism, the natural law movement, etc.); A. Barak, ‘Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy’ (2002) 116 Harvard L. Rev. 16, at 21.
13 For origin of the word fundamentalism in U.S. protestantism, and ongoing manifestations, K. Armstrong, The Battle for God (New York: Random House, 2001) xii, 214–15 (various forms of separation, segregation, of fundamentalist groups); and for rights, D. Kinley, ‘Human Rights Fundamentalisms’ (2007) 29 Sydney L. Rev. 545, notably at 547 (‘human rights evangelism’).
14 H. P. Glenn, ‘Professional Structures and Professional Ethics’ (1990) 35 McGill L. J. 424. Within the field of professional traditions, there are of course sub-traditions: of ethics of role, instructive in how to act (‘God loveth adverbs’) and ethics of situation, instructive in what to do; and of countries and regions (North American vs. European professional models, though contrast may now be declining).
15 D. Armstrong, ‘The Nature of Tradition’ in D. Armstrong, The Nature of Mind (Ithaca: Cornell Univ. Press, 1981) 89 at 102 (complex traditions, such as western academic tradition or tradition of English novel, ‘are some sort of fused mass of simple traditions...the set of simple traditions that make up the complex tradition will have a certain unity...at any given moment in the history of a complex tradition, a large number of the simple traditions that it involves will be secure, although others are in the process of being modified, abandoned, or created. In this way, a complex tradition is well suited to meeting demands both for continuity and change in society’); M. Krygier, ‘Law as Tradition’ (1986) 5 Law & Philos. 237 at 254 (‘Any complex tradition, such as law, itself is likely to be made up of different sorts of traditions’); D. Pearce, Roads to Commensurability (Dordrecht: D. Reidel, 1987) at 10 (‘The guiding principle is to represent a research tradition as a structured family of interrelated theories’). On modern (western) theory of complexity, M. Gell-Mann, The Quark and the Jaguar: Adventures in the Simple and the Complex (New York: W. H. Freeman, 1994); P. Coveney and R. Highfield, Frontiers of Complexity (New York: Fawcett Columbine, 1995); J. Horgan, ‘From Complexity to Perplexity’ Scientif. Am., June 1995 at 104 (on challenge to the idea of a ‘unified theory’ of complex systems; competing view of complexity of discrete fields of science); N. Rescher, Complexity (New Brunswick: Transaction, 1998), notably at 28, 72 (complexity of world limitless, ‘social domain’ also characterized by ‘volatility’); and on the need for contemporary havens for ‘complex memes’ (or bodies of information), D. C. Dennett, Darwin’s Dangerous Idea: Evolution and the Meanings of Life (New York: Simon & Schuster, 1995) at 519.
17 See Ch. 3, Law and the cosmos, and Change and the Natural World.
19 See Ch. 5, European identities; and see W. M. Gordon, ‘The Civil Law in Scotland’ (2001) 5 Edinb. L. Rev. 130 at 137 (‘upshot of all this is that the Civil Law does not present itself as a simple, stable tradition but as a complex of varying approaches to the texts’).
21 See Ch. 7, Common law and states, and The practice of multiple laws; and Invercargill City Council v. Hamlin  2 WLR 367 (J.C.P.C.) at 378 (‘in this branch of the law more than one view is possible: there is no single correct answer’), per Lord Lloyd of Berwick.
23 See Ch. 9, Limiting religion, Confucianization and Li, social harmony and right.
24 From the Latin valentia, meaning vigour or capacity, hence more generally power, importance or value.
25 Or as the French say, you cannot have butter and the price of the butter (‘le beurre et le prix du beurre’), or more abstractly ‘of two things, one’ (‘de deux choses l’une’). In Swiss German it is a choice between the five cent piece and the milk roll (Man nicht den Fünfer and das Weggli haben kann’) (thanks to Mathias Siems). A Mediterranean country would have it that you cannot have the bottle full and the wife drunk. The idea is deeply ingrained in all western societies, a ‘hallowed tradition’ in the language of K. F. Machina, ‘Truth, belief and vagueness’ in R. Keefe and P. Smith (eds.), Vagueness (Cambridge: MIT Press, 1996) 174 at 176.
26 There can be no space between the two since [not A] is everything else in the universe, including all its space, beyond A. The rule is logically compelling, but presumes the possibility of a sharp or crisp boundary between [A] and the rest of the world.
27 Referred to as the parallel law of non-contradiction. For Aristotle’s formulation, see his Metaphysica, IV 3 1005b 18–37, 1006 1–5, IV 6 1011b 12–25. Aristotle acknowledged, however, that ‘it will not be possible to be and not to be the same thing, except in virtue of an ambiguity’ (emphasis added). Ibid. IV 4 1006b 18, 19.
28 Plato, The Statesman, 258e, 261b (‘it’s not at all difficult to separate into two all of those things that come into being’, ‘divide all cases of knowledge in this way, calling the one sort practical knowledge, the other purely theoretical’—a dichotomy with us still); The Sophist, 219a (‘expertise falls pretty much into two types’). For the method in categorizations of Roman law see Ch. 5, Substantive, secular law, and for its traditio through medieval law, A. Errera, ‘The Role of Logic in the Legal Science of the Glossators and Commentators’ in E. Pattaro (ed.), A Treatise of Legal Philosophy and General Jurisprudence, vol. 7 (Dordrecht: Springer, 2007) 79 at 81–4 (‘The Dichotomous Technique’).
29 Thus blurring Oliver Wendell Holme’s dichotomy that ‘The life of the law has not been logic; it has been experience’ in The Common Law (Boston: Little, Brown, 1881) at 1. For the view that logic in the law cannot neglect the ‘deeply socio-historical character of legal systems’, S. Haack, ‘On Logic in the Law: Something, but not All’ (2007) 20 Ratio Juris 1 at 19; yet dichotomous thinking is itself deeply socio-historical in the civil and common laws and in much historical and empirical work on their operation. For the historical character of such ‘forced abstraction’, involving ‘false, one sided oppositions’ (form/substance, individual/community, legal/moral, universal/particular), A. Norrie, Law and the Beautiful Soul (London: Cavendish, 2005) at 4.
31 ‘Outside mathematics, virtually all of our language is vague’; N. Smith, Vagueness and Degrees of Truth (Oxford: OUP, 2008) at 2. For the arbitrary character of Plato’s divisions, T. Viehweg, Topics and Law, trans. W. Cole Durham Jr. (Frankfurt: Peter Lang, 1994) at 57 (‘...such distinctions are logically arbitrary...limited only by the willingness of co-speakers to accept them’). Multivalence does not require the abandonment of categories in law, however, but only recognition of their imprecise boundaries, allowing an included middle. Multivalence thus itself occupies a middle ground, between bivalence and radical scepticism (or ‘realism’ some might say).
32 Keefe and Smith, Vagueness (1996), above; G. Priest, J. Beall and B. Armour-Garb, The Law of Non-Contradiction (Oxford: Clarendon Press, 2004), essays ‘for’ and ‘against’ crisp boundaries and LNC; T. Williamson, Vagueness (London: Routledge, 1994), citing a 1909 Peirce ms (unpub.) at 102, and defending view (epistemicism) that vagueness flows not from failure of a statement to be true or false but from our inability to find out which; cf. G. Priest, An Introduction to Non-Classical Logic, 2nd edn (Cambridge: CUP, 2008) at 223 (not just inability to know but ‘very possibility of a cut-off point at all’); S. Soames, ‘Vagueness and Law’ in A. Marmor, The Routledge Companion to Philosophy of Law (Routledge: New York, 2012) 95 at 107 for vagueness as ‘partial definition’, sensitivity to context and therefore not epistemic. For others in the history, G. Malinowski, Many-Valued Logics (Oxford: OUP, 1993) at 2. In legal reasoning, L. Weinreb, Legal Reason (Cambridge: CUP, 2005) at 89 (‘although the words that we use...are cast as discrete categories, the actual phenomena are mostly continuous’); Haack, ‘Logic in the Law’ (2007), above, at 2, 11 (‘many-valued logic’ as one of ‘more powerful logical techniques now available’, part of ‘success of the new logic’).
33 Williamson, Vagueness (1994), above, at 120, citing notably the work of Lofti Zadeh and the International Journal of Fuzzy Sets and Systems. The initial article of Zadeh is ‘Fuzzy Sets’ (1965) 8 Information and Control 338. Cf. the terminology of N. Rescher, Many Valued Logic (Aldershot: Gregg Revivals, 1993), or H.-J. Zimmermann, Fuzzy Set Theory—and its Applications (Dordrecht: Kluwer, 1996) at xv (theory of ‘graded concepts), also at xix, 6 on recent growth of publications on subject; for the social sciences, B. Blyvbjerg, Making Social Sciences Matter [:] Why social inquiry fails and how it can succeed again, trans. S. Sampson (Cambridge: CUP, 2001) at 49 (‘Rather than the “either-or, ” we should develop a non-dualistic and pluralistic “both-and”’); U. Beck and C. Lau, Entgrenzung und Entscheidung (Frankfurt: Suhrkamp, 2004), notably at 16 (process of de- or unbordering of concepts and objects, developing ‘both-and’ logic; and mathematics, M. Bergmann, An Introduction to Many-Valued and Fuzzy Logic (Cambridge: CUP, 2008), notably at xi (‘has developed into an extensive, rigorous and exciting discipline’).
34 B. Kosko, Fuzzy Thinking (New York: Hyperion, 1993); D. McNeill and P. Freiberger, Fuzzy Logic (New York: Simon & Schuster, 1993), notably ch. 8, ‘In Electric Town’. Think rheostat rather than switch.
35 D. Gabbay and J. Woods (eds.), The Many Valued and Nonmonotonic Turn in Logic (Amsterdam: North Holland, 2007).
36 Ch. 5, European identities; and see N. Barber, ‘Legal Pluralism and the EU’ (2006) 12 Eur. L. J. 306, notably at 327 (‘this inconsistency is sustainable if each side shows institutional restraint’); and discussion in H. P. Glenn, The Cosmopolitan State (Oxford: OUP, 2013) ch.14 (‘Cosmopolitan Thought’). Fuzzy logic would be most apt as a means of organizing a plurality of simultaneously applicable normative ensembles, without suppression of any of them; M. Delmas-Marty, Le flou du droit (Paris: PUF, 1986) at 269; and for view that ‘all values ought to be given some attention’, N. MacCormick, Rhetoric and the Rule of Law (Oxford: OUP, 2009) at 167.
37 C. Bell, On the Law of Peace (Oxford: OUP, 2008) at 194 (peace agreements ‘straddling...binary divisions’) and 302 (need to embrace an otherwise excluded middle).
38 This is not to say that multivalent logic is necessarily preferable in all fields of law. For attempts in application, E. Adams, S. Nickles and T. Ressler, ‘Wedding Carlson and Schwartz: Understanding Secured Credit and a Fuzzy System’ (1994) 80 Va. L. Rev. 2233 (being secured or not a matter of degree, forcing judge to seek more facts, intersections of agreement); J. Williams, ‘The Fallacies of Contemporary Fraudulent Transfer Models as Applied to Intercorporate Guaranties: Fraudulent Transfer Law as a Fuzzy System’ (1994) 15 Cardozo L. Rev. 1403; and in matters of evidence and elsewhere K. Clermont, ‘Death of Paradox: The Killer Logic Beneath the Standards of Proof’ (2012) 88 Notre Dame L. Rev. 1061; M.-L. Mathieu-Izorche, Le raisonnement juridique (Paris: PUF, 2001) ch. 9.2 (‘logique floue’), notably at 335 (on degrees of relevance of written articles to a given subject (or how to judge a search engine)); for use in police line-up for degree of confidence (0 to 100%) in identifying perpetrator, ‘Unusual Suspects’, The Economist March 3, 2012, at 90; N. Brewer and G. Wells, ‘Eyewitness Identification’ (2011) 20 Curr. Dir. Psy. Sc. 24, at 26 (‘accuracy rates that exceeded the accuracy of the traditional binary identification’).
39 For use of ‘if, then’ language, as opposed to more apodictic styles of expression (‘it is forbidden’, ‘do this’), in both fuzzy logic and casuistic legal styles, Adams, Nickles and Ressler, ‘Wedding Carlson and Schwartz’ (1994) 2241; R. Westbrook, ‘Biblical Law’ in N. Hecht, B. Jackson, S. Passamaneck, D. Piattelli and A. Rabello (eds.), An Introduction to the History and Sources of Jewish Law (Oxford: Clarendon Press, 1996) 1 at 6.
40 For casuistry in the recent practice of the U.S. Supreme Court, described as ‘minimalism’, C. Sunstein, One Case at a Time (Cambridge: HUP, 1999), notably at 11 (decisions ‘no broader than necessary to support the outcome’, need for ‘incompletely theorized agreements’ concrete particulars); and for similar practice in the French Court of Cassation, as described by its then Premier President, G. Canivet, ‘La convergence des systèmes juridiques du point de vue du droit privé français’, RIDC 2003. 7 at 17–22 (reliance on fuzzy notion of ‘public order’ rather than broad choice of law rules, in deciding on recognition in France of islamic marriages and divorces, concentrating on circumstances of individual cases). Reliance on broad or scientific rules in human affairs, where human beings tend to ‘answer back’, has been recently criticized as a major failing of social sciences; B. Blyvbjerg, Making Social Science Matter (2001), above, notably at 24, 66 ff. (need for social science to contextualize, work at case level, law already an exception since cannot be decontextualized to same extent); I. Shapiro, The Flight from Reality in the Human Sciences (Princeton: PUP, 2005), notably at 2, 52 (quantitative social sciences ‘modelled themselves on physics...very little has been learned by way of nonobvious propositions that withstand empirical scrutiny’); T. Gowers, Mathematics (Oxford: OUP, 2002) at 7 (‘the most that one can reasonably ask of any [social science] model is predictions of a conditional kind: that is, ones that tell us what the effects of social and political changes will be if they happen’). Yet for contemporary quantum physics, in the view of a Nobel laureate, now embracing contradiction, rejecting the rule of non-contradiction, F. Wilczek, The Lightness of Being (New York: Basic, 2008) at 43 (underlying reality of protons ‘unseats classical logic’, allows reconciliation of ‘two seemingly contradictory ideas about what protons are’), 54 (‘we can eat our quarks and have them too’).
41 On Locke, J. Tulley, ‘Toleration, Skepticism and Rights: John Locke and Religious Toleration’ in E. Furcha (ed.), Truth and Tolerance (Montreal: Faculty of Religious Studies, McGill Univ., 1990) 13; for toleration as a (value-laden) characteristic of liberalism, J. Horton, ‘Toleration as a Virtue’ in D. Heyd (ed.), Toleration (Princeton: PUP, 1996) 28 at 36 (toleration only temporary expedient on way to larger liberal goals); I. Berlin, ‘The Originality of Machiavelli’ in H. Hardy (ed.), Against the Current (New York: Viking Press, 1979) 25 at 78; and for the ‘Hobbesian equilibrium’ of toleration, B. Williams, ‘Toleration: An Impossible Virtue?’ in Heyd (ed.), Toleration (1996), above, at 21.
42 Williams, ‘Toleration’ (1996), above, at 18 (toleration required only for the intolerable) (other group ‘blasphemously, disastrously, obscenely wrong’) 26; B. Herman, ‘Pluralism and the Community of Moral Judgment’ in Heyd (ed.), Toleration (1996), above, 60 at 61 (toleration not neutral response since permits ‘continued private moral hostility’). Christians, it is therefore often said (and the remark is attributed to many), want to be accepted, not tolerated; though for an effort to rescue the concept of toleration (admitting ‘extremely diverse justifications’ and that it is itself the object of controversy), R. Forst, Toleration in Conflict (Cambridge: CUP, 213), notably at 447, 449.
43 A. T. E. Embree, ‘Introduction, Part III: The Hindu Way of Life’ in A. T. E. Embree (ed.), Sources of Indian Tradition, 2nd edn (New York: Columbia Univ. Press, 1988) at 205.
44 For the notion of interdependence and its importance in contemporary world trade, J. H. Jackson, The World Trading System, 2nd edn (Cambridge: MIT Press, 1997), notably at 6 (‘The Meaning of Interdependence’), 79 and ff. (‘Interrelationship of National and International Institutions’); and in contemporary inter-governmental relations generally, K.- H. Ladeur (ed.), Public Governance in the Age of Globalization (Aldershot: Ashgate, 2004), notably M. van Hoecke, ‘Legal Orders between Autonomy and Intertwinement’ at 177; and for toleration redefined as recognition of differences between groups, A. Galeotti, Toleration as Recognition (Cambridge: CUP, 2002), notably at 5 (on limits of liberal toleration as pertaining to individual choice).
45 On the notion of secularity and its relation to christianity, however, see Ch. 5, Law as reason’s instrument.
46 Ch. 2, Tradition and Identity; and for the ‘generally porous and partially voluntary nature of boundaries between traditions’, A. Buchanan and M. Moore, States, Nations and Borders (Cambridge: CUP, 2003) at 2–3 (also on their possible transformation into ‘political or legal requirements’).
47 J. Kekes, The Morality of Pluralism (Princeton: PUP, 1993) at 3 (‘the terrible simplicities of fundamentalists of various persuasions’); and for fundamentalism as a failure of irony, in its traditional sense of placing statements ‘in relation to some kind of “other” truth’, which is what traditions require (and which does not entail relativism), S. Prickett, Narrative, Religion and Science [:] Fundamentalism versus Irony 1700–1999 (Cambridge: CUP, 2002) at 203 and 44 (irony as voice ‘whispering’ in the ear). In science a ‘principle of irreduction’ has thus been proposed, denying ‘the possibility of a reduction in the name of a transcendence’ (‘this is that’, ‘science is only politics’), too often leading to ‘irreducible opposition’ between transcendent concepts. I. Stengers, The Invention of Modern Science, trans. D. Smith (Minneapolis: Univ. of Minnesota Press, 2000) at 16–17; and for ‘correct’ theory of vagueness as one which ‘countenances degrees of truth’; Smith, Vagueness and Degrees of Truth (above), above, at 9.
48 J. Kelsay, Arguing the Just War in Islam (Cambridge: HUP, 2007) at 199 (‘Militants...are their own worst enemy’); E. Hobsbawm, Globalism, Democracy and Terrorism (London: Little, Brown, 2007) at 135 (terrorist networks ‘symptoms, not significant historic agents’); and for ‘deterioration’ of Islamic legal tradition under ‘puritan orientations’, historical ejection of extremist groups from mainstream Islam, eventually being treated as ‘heretical aberration’, K. El Fadl, The Great Theft [:] Wrestling Islam from the Extremists (San Francisco: HarperSanFrancisco, 2005) at 102.
49 See, e.g., R. Evan-Jones (ed.), The Civil Law Tradition in Scotland (Edinburgh: Stair Society, 1995); D. Carey Miller and R. Zimmermann (eds.), The Civilian Tradition and Scots Law (Berlin: Duncker & Humblot, 1997); R. Zimmermann and D. Visser (eds.), Southern Cross: Civil Law and Common Law in South Africa (Oxford: Clarendon Press, 1996); J. Brierley and R. Macdonald (eds.), Quebec Civil Law (Toronto: Emond Montgomery, 1993); H. P. Glenn (ed.), Droit français et droit québécois (Cowansville: Yvon Blais, 1993); and for the growth of mixité, E. Örucü, E. Attwool and S. Coyle (eds.), Studies in Legal Systems (The Hague: Kluwer, 1996); V. Palmer, Mixed Jurisdictions Worldwide, 2nd edn (Cambridge: CUP, 2012) (with national reports, notably at 39 for debates of ‘purists, pragmatists, pollutionists’). Mixity was also a ‘modernizing force’ in the 17th and 18th c’s; W. Schmidgen, Exquisite Mixture (Philadelphia: Univ. of Pennsylvania Press, 2013), notably at xii (contrasting notion of differentiation).
50 H. P. Glenn, On Common Laws (Oxford: OUP, 2005).
51 This would not control, of course, their precise relations at any time.
52 For the importance of intellectual or ‘cultural’ diversity, as well as natural diversity, D. J. Anton, Diversity, Globalization and the Ways of Nature (Ottawa: Int’l. Development Research Centre, 1995), notably at 198, 200 (‘The future of living systems is a result of multiple current options. Diversity provides flexibility...Diversity is life; uniformity is death’) 201–9; N. Ostler, Empires of the Word (New York: HarperCollins, 2005), notably at 557–8 (‘Different languages protect and nourish the growth of different cultures, where different pathways of human knowledge can be discovered’); and for dependence of natural or biological diversity on human diversity (and ongoing recognition of diverse ways of human life compatible with natural world), D. A. Posey (ed.), Cultural and Spiritual Values of Biodiversity (London: U.N. Environment Programme, 1999), notably at xi.
53 Cf., however, for a biologist’s view that ‘cultural evolution’ must be distinguished from genetic evolution, notably by human capacity for ‘genuine, disinterested, true altruism’, R. Dawkins, The Selfish Gene (Oxford: OUP, 1976) at 205, 215; views further elaborated in Dennett, Darwin’s Dangerous Idea (New York: Simon & Schuster, 1995), above, ch. 16 (‘On the Origin of Morality’), notably at 461 (‘entirely natural—it wasn’t supernatural—for us to step out of the state of nature and adopt a host of societal practices for our mutual benefit’), 473 (memes, i.e., ideas or information, ‘can redirect our underlying genetic proclivities’); though for a ‘robust evolutionary basis for genuine altruism, ’ C. Boehm, Hierarchy in the Forest (Cambridge: HUP, 1999) 14, and notably at 198–9 (egalitarian societies emerging 1, 000 to 4, 000 generations ago, importance of cooperation of ‘extant hunter-gatherer nomads’, i.e., existing chthonic peoples); F. de Waal, The Age of Empathy (New York: Harmony, 2009) (for cooperation of all animals); J. Roughgarden, The Genial Gene (Berkeley: Univ. of California Press, 2009), notably at 66 (‘social selection’ involving ‘as much cooperation as competition’); and see L. Wieseltier, Kaddish (New York: Alfred A. Knopf, 1998) at 269 (‘The reproduction of tradition is not like the reproduction of genes. Strictly speaking, tradition is not replicated, since it is never transmitted exactly as it was received. More important, the spiritual legacy and the biological legacy differ in their reasons for survival. The former promises more than itself: the true, the good, the beautiful. The latter promises only itself. Genes survive so that genes will survive. In this respect they are profoundly inhuman, even if they are the physical history of humanity’); B. Williams, Truth and Truthfulness (Princeton: PUP, 2002) at 24 (capacity shown, in some form or other, by ‘humans in all cultures to live under rules and values’).
55 See M. Walzer, On Toleration (New Haven: Yale Univ. Press, 1997) at 92 (‘some mix of curiosity and enthusiasm is necessary’).
56 In any event, ‘[m]ultivalence reduces to bivalence in extreme cases’, i.e., if you look to either end of the middle ground, you find opposing positions which are bivalent. E. Adams and D. Farber, ‘Beyond the Formalism Debate: Expert Reasoning, Fuzzy Logic, and Complex Statutes’ (1999) 52 Vand. L. Rev. 1243 at 1290; and for resort to different types of logic in science, Pearce, Roads to Commensurability (1987), above, at 9 (‘one may...recognise that different types of logic and semantics may be appropriate in different contexts and for different theories’); and for this position generally in the new logics, J.C. Beall and G. Restall, Logical Pluralism (Oxford: Clarendon Press, 2006).
57 In addition to the multivalent operation of the traditions examined above. For further examples, H. P. Glenn, ‘Cosmopolitan Legal Orders’ in A. Halpin and V. Roeben, Theorising the Global Legal Order (Oxford: Hart, 2009) 25.
58 The expression is drawn from the French ‘marge d’appréciation’ but the English language also knows the notion of ‘margin’ as an additional zone or amount of space or time. For origins and vast case law over the entire range of the Convention, Y. Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Antwerp: Intersentia, 2002); and more particularly J. Sweeney, ‘Margins of Appreciation: Cultural Relativity and the European Court of Human Rights in the Post-Cold War Era’ (2005) 54 I.C.L.Q. 459, notably at 467 (‘ethical de-centralisation or subsidiarity’); M. Delmas-Marty, Towards a Truly Common Law (Cambridge: CUP, 2002) at 115 (notion of degree of violation of human rights); F. Ost, ‘La jurisprudence de la Cour européenne des droits de l’homme: amorce d’un nouveau “jus commune”?’ in B. de Witte and C. Forder (eds.), The common law of Europe and the future of legal education (Deventer: Kluwer, 1992) 683, notably at 717 (‘une logique polyphonique’); A. Legg, The Margin of Appreciation in International Human Rights Law (Oxford: OUP, 2012) (also for Inter-American Court of Human Rights, UN Human Rights Committee). The same concept has been used by the European Court of Justice in Dynamic Medien Vertriebs v. Avides Media  EUECJ C-244/06, para. 44. I am grateful to Jukka Snell for this reference.
59 For the language of ‘width’, T. O’Donnell, ‘The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights’ (1982) 4 Hum. Rts Q. 474 at 475, 479 (consensus among member states yielding narrow margin); T. Lewis, ‘What not to Wear: Religious Rights, the European Court, and the Margin of Appreciation’ (2007) 56 I.C.L.Q. 395 at 398.
60 The notion of different levels of scrutiny is rooted in the well-known fn. 4 of United States v. Carolene Products Co., 304 U.S. 144 at 152. Depending on the level of scrutiny chosen (‘intense’ or ‘strict’, ‘intermediate’, ‘rational basis’) there are implicit different ranges of permissible government action, as in Europe); for levels of scrutiny as the ‘nearest analogue’ to proportionality in the EU, J. Matthews and A. Stone Sweet, ‘All Things in Proportion? American Rights Doctrine and the Problem of Balancing’ (2011) 60 Emory L. J. 797, at 800, 837 (also at 873 for ‘systemic incoherence’).
61 Delmas-Marty, Truly Common Law (2002), above, at 79, 80 (content of human rights ‘poorly determined’); and for the Supreme Court of Canada allowing ‘no binary, yes or no analysis’ in determining persons having interest to sue for their protection, Canada v. Downtown Eastside Sex Workers, 2012 SCC 45, para. 50.
62 T. Hickman, ‘The Substance and Structure of Proportionality’  Public Law 693, notably at 699 (proportionality itself allowing ‘zone of proportionality’), 712 (need to evaluate ‘measure taken and possible alternatives’), 715 (not ‘hard-edged’); G. Letsas, ‘Two Concepts of the Margin of Appreciation’ (2006) 26 OJLS 705 (proportionality most important criterion, margin of appreciation in particular cases may be simple conclusory label). In the U.S.A., given a level of scrutiny of legislation, the ensuing scrutiny is couched largely in language compatible with European notions of proportionality (laws ‘narrowly tailored’, ‘compelling’ government interests, ‘less restrictive alternatives’). For balancing as ‘quintessentially a fuzzy decisional method’, B. Cook, ‘Fuzzy Logic and Judicial Decision Making’ (2001) 85 Judicature 70 at 73.
63 See, for the historical ambivalence of western thought concerning rights, J. Coleman, ‘Medieval Discussion of Human Rights’ in W. Schmale (ed.), Human Rights and Cultural Diversity (Goldbach: Keip Publishing, 1993) 103 at 106 (prior to current liberal theory all rights theorists viewed holders of rights only ‘in relation to other humans as bearers of rights and recognizers of the rights of others’); and for international human rights as ‘decentered’, existing ‘as part of preexisting legal and ethical configurations’, M. Goodale and S. E. Merry (eds.), The Practice of Human Rights (Cambridge: CUP, 2007) at 3, 4.
64 R. Herzog, ‘Die Rechte des Menschen’ Die Zeit, Sept. 13, 1996, 3; and see S. Sinha, ‘Human Rights: A Non-Western Viewpoint’ (1981) 67 Archiv für Rechts- und Sozialphilosophie 76 at 89 (‘What is required is a redefinition of the problem of human rights...recognizing the fact that there [is] more than one way of achieving such emancipation’); J. Castellino and E. Redondo, Minority Rights in Asia (Oxford: OUP, 2006) at 251 (need for ‘thorough engagement with the domestic systems of specific states, on particular issues’).
65 For the debate on dignity, and whether it must itself be formulated in the liberal and western manner as a right, C. McCrudden (ed.), Understanding Human Dignity (Oxford: OUP, 2014); D. Feldman, ‘Human Dignity as a Legal Value’  P. L. 682,  P. L. 61, notably at 682, 687 (dignity not itself a right, rather an aspiration), 688, 696–9 (dignity as foundation for rights in int’l human rights instruments, national constitutions, though on occasion expressed as right); C. O’Mahony, ‘There is No Such Things as a Right to Dignity’ (2012) 10 Int. J. Const. L. 551, with reply by E. White at 575.
66 See, e.g., S. Krasner (ed.), International Regimes (Ithaca: Cornell Univ. Press, 1983); O. Young, ‘International Regimes: Toward a New Theory of Institutions’ (1986) 39 World Politics 104; and for use of the notion of a ‘margin of appreciation’, E. Brems, ‘Reconciling Universality and Diversity in International Human Rights Law’ in A. Sajó, Human Rights with Modesty (Leiden: Martinus Nijhoff, 2004) 213 at 225 (‘Flexibility and Transformation’); Y. Shany, ‘Toward a General Margin of Appreciation Doctrine in International Law?’ (2006) 16 Eur. J. Int’l. L. 907.
67 The argument dates from at least Dumoulin in 16th c. France, who sought to free contractual obligations from the grip of regional ‘customs’. As the grip of ‘customs’ weakened, however, that of the state strengthened, so party autonomy met powerful resistance. In some areas of the world, such as latin America and in various communist jurisdictions, it was almost eliminated in the 19th and 20th c’s.
68 Perhaps most famously put in H. Batiffol, ‘Subjectivisme et objectivisme dans le droit international privé des contrats’ in Mélanges Maury (Paris: Dalloz & Sirey, 1960) at 53.
69 For details of the Convention, with references, L. Collins (ed.), Dicey, Morris, and Collins on the Conflict of Laws, 15th edn (London: Sweet & Maxwell, 2012) vol. II, at 1775 ff.
70 Art. 3 thus provides that a contract is governed by the law chosen by the parties. Yet art. 9 provides that effect may be also given to the ‘overriding mandatory’ provisions of the law of the forum. This notion of ‘overriding mandatory’ rules is a fuzzy standard, since there are degrees of being mandatory, e.g., where a particular rule is stated to be imperative for local contracts, where it is stated to be imperative for all contracts, local or international, and where no rule of application is stated but where a court may conclude that a particular rule should be applied in order to give effect to an implicit legislative intention (an historically imprecise process). State control may thus exist for states which wish to affirm it and state control will prevail in an individual case whenever a state law can be judged to be ‘overriding mandatory’ (meeting the fuzzy standard). For the argument, H. P. Glenn, ‘Multivalent Logic and the Rome Convention’ in K. Boele-Woelki and W. Grosheide, The Future of European Contract Law: Essays in honour of Ewoud Hondius (Alphen aan den Rijn: Kluwer, 2007) at 283.
71 A. Sen, Resources, Values and Development (Oxford: Basil Blackwell, 1984), notably at 489 (need to consider passions as well as interests), 495 (economic growth no more than means to other objectives); S. Abou, Culture et droits de l’homme (Paris: Hachette, 1992) at 126 (notion of ‘développement intégré’); J. Brohman, Popular Development (Oxford: Blackwell, 1996), notably ch. 11 (‘Indigenization of Development’); Anton, Diversity, Globalization, and Ways of Nature (1995), above, at 150–2 (failure of colonial, socialist and capitalist productivist models will promote search for new models based on indigenous resources and cultures); Mattei, Comparative Law and Economics (1997), above, notably at 239 (‘transaction costs of substituting modern solutions to traditional ones are just too high’); O. de Rivero, Le mythe du développement (Paris: l’Atelier, 2003) (need to abandon broad western model, develop autonomous criteria (water, food, energy)); M. Blaser, H. Feit and G. McRae, In the Way of Development (London: Zed, 2004), notably ch. 16 by P. Harries-Jones, ‘The “Risk Society”: Tradition, Ecological Order and Time-Space Acceleration’ 279 at 287 for Inuit insistence on ‘traditional ecological knowledge’ as fundamental concept of Inuit Qaujimajatuqangit (healthy, sustainable communities, ‘IQ for short’); J. Gillespie and P. Nicholson (eds.), Law and Development and the Global Discourse of Legal Transfers (Cambridge: CUP, 2012) (need to refocus on interpretation of legal transfers by local recipients); and for multivalence in the process, and need to turn the contradictory into the complementary, J. Poirier, ‘Éléments de réflexion pour une théorie du droit africain’ in C. Kuyu (ed.), À la recherche du droit africain du XXIe siècle (Paris: Connaissances et Savoirs, 2005) 35 at 41 (‘rendre complémentaire ce qui paraît être des contradictions’); T. Kelley, ‘Exporting Western Law to the Developing World: The Troubling Case of Niger’ (2007) 7 Global Jurist Frontiers, Issue 3, Article 8, http://www.bepress.com/gj/vol7/iss3/art8 at 40 (need for ‘simultaneously preserving...legal traditions’, ‘gradual, dualistic...approach’).
72 P. Ørebech et al, The Role of Customary Law in Sustainable Development (Cambridge: CUP, 2005), notably at 7 (role of non-state law in natural resource management), 252 ff. (resilience indicated by history of adaptation, ‘fine-grained’ rules facilitating modification, meaningful feedback, avoidance of ‘unduly’ privatizing rights).
73 C. Goodhart, ‘Economics and Law’ (1997), above, with refs.; D. Campbell and S. Picciotto, ‘Exploring the interaction between law and economics: the limits of formalism’ (1998) 18 Legal St. 249, notably at 253 (‘all transactions, can take place only within constitutive social relations...If one really took away all the costs of exchanging, the exchange would not take place cost free, it would not take place at all’); D. Lal, Unintended Consequences (Cambridge: MIT Press, 1998), notably at 44, 174 on the importance of ‘cosmological beliefs’ in determining economic outcomes. Absence of appropriate legal structures encourages parasitic, criminal traditions (gangs and mobs) in all social contexts. The legal structures need not necessarily be those of western, formal law, however, and different forms of lex non scripta may provide the necessary trust and stability for transactions; for Asia, see Ch. 9, Limiting religion. For the historical reliance of Adam Smith on a ‘framework of justice’, R. Backhouse, The Penguin History of Economics (London: Penguin, 2002) at 122, 128.
74 Lemon v. Kurtzman, 403 U.S. 602 at 614 (1971) (Burger CJ); and see K. Greenawalt, Religion and the Constitution, vol. 1 (Princeton: PUP, 2006) at 5 (‘Multiple Value Theories and the Problem of Coherence’).
75 For judicial, multivalent treatment of the wearing of a veil, see Ch. 6, The islamic diaspora; and for measures compelling the granting of religious divorce, Civ. 13 Dec., 1972, D. 1973. 493.