Academic

Berman on a Jurisprudence of Hybridity

By Lawrence Solum

Paul Schiff Berman (Princeton University and Sandra Day O'Connor College of Law) has posted Towards a Jurisprudence of Hybridity (Utah Law Review, No. 1, p. 11, 2010) on SSRN. Here is the abstract:

In this Essay, I start by referencing work of sociologists and political theorists analyzing interpersonal and societal communication, and I contrast a vision whereby difference is overcome by assuming commonality with one in which "otherness" is seen as an inevitable part of human interaction. I argue that it is unwise to attempt to "overcome" difference by trying to forge sameness. Yet, it is equally unwise, in a globally integrated world, to expect that walls of separation (either literal or conceptual) will be effective. Thus, we should aspire to a state of unassimilated otherness in an integrated community. In such a state, we seek communication across difference rather than annihilation of difference.

Then, I turn to law and survey three different procedural mechanisms that are or could be examples of a jurisprudence of hybridity with regard to non-state communities. First, I examine the idea of building margins of appreciation into constitutional jurisprudence to allow some scope for local and non-state community variation. Second, I explore the possibility that limited autonomy or participation regimes can help ensure some scope for non-state norms. And third, I suggest that thinking of non-state norms through the prism of conflict of laws doctrines-jurisdiction, choice of law, and recognition of judgments-might be preferable to the more mechanistic ways in which clashes between state and non-state norms are often judged.

Full post as published by Legal Theory Blog on December 10, 2010 (boomark / email).