Federalism and International Law through the Lens of Legal Pluralism

I. INTRODUCTION Federalism in the United States is often discussed in terms of sovereignty. Thus, we are told that the colonies were originally completely separate sovereign entities and that though they ceded some authority to the federal government, they retained their sovereign prerogatives. Accordingly, so the story goes, we live in a system of 51 sovereignties, and discussions of federalism are about how best to negotiate the relative power of these different sovereign entities. (1) This, however, is not the only way of thinking about federalism. Indeed, there is a different story we could tell, perhaps best captured in the oft-quoted idea of the states as "laboratories" of democracy. (2) Here the federal system is important not so much because such a system maintains the autonomy of different sovereign entities, but because it provides the opportunity for multiple decision-makers to try out different solutions to similar problems. Moreover, the dialogue among the multiple decisionmakers may cause better solutions to spread through the system or may cause decisionmakers to recognize that varying solutions may be appropriate given varying local conditions. From this perspective, the overlapping jurisdiction of federal and state entities is seen as opening the possibility for creative innovation. This is what might be called a pluralist justification for federalism. As with federalism, the relationship between international law and nation-state law similarly is often viewed through the lens of sovereignty. And again, as with federalism, the sovereigntist approach focuses on states as autonomous power centers. Thus, according to the conventional narrative, states use international law when it is in their interests, but ignore it when it is not. In this vision, international law is merely an epiphenomenon of state sovereignty, not any limitation upon it. (3) But, again as with federalism, we can view international law through a pluralist lens. Thus, we may focus on international and transnational legal pronouncements as providing alternative sources of authority that can change legal consciousness over time, affect local debates, empower different local actors, and provide an alternative set of fora in which individuals and coalitions can make their voices heard. (4) On this view, rational choice understandings of how international law works or pure theory debates about sovereignty are limited because they focus too heavily on coercive power, thereby giving insufficient attention to the role of rhetorical persuasion, informal articulations of legal norms, and networks of affiliation that may not possess literal enforcement power. All of these are emphasized in a pluralist frame. Recently, a group of scholars, many influenced by the seminal work of Robert Cover, (5) have embraced a more pluralist approach to both American federalism and international law. (6) They have touted the important virtues of jurisdictional redundancy and inter-systemic governance models in which multiple legal and regulatory authorities weigh in regarding the same acts and actors. And, like Cover, they argue that such jurisdictional redundancies are not just a necessary accommodation to the reality of a world of multiple authority; they may actually be beneficial. In short, we can view legal pluralism (to use the parlance of computer science) as a feature and not a bug. This is a controversial move. After all, it is one thing to recognize the inevitability of legal pluralism as a description of reality and quite another to treat it as normatively desirable. Indeed, legal pluralists have historically focused primarily on the descriptive, tracing the overlaps and tensions that occur when two or more legal or quasi-legal systems operate in the same social field. (7) Thus, anthropologists have charted the relationships between colonial and indigenous legal systems, (8) theorists of religious pluralism have documented the interactions between state law and religious communities, (9) and so on. …