Internal traditions

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.

Lateral 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.

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?

Complex 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?

Beyond tolerance?

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.

Sustaining diversity

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.