Global legal pluralism, unlike many of the theoretical approaches explored in this volume, takes into view not just international law as such but inquires into the broader universe in which traditional international law, understood primarily as inter-state law, is embedded. It starts from the observation that in today’s global order multiple normativities – domestic, regional and international, formal and informal, private and public – interact and that this interaction is important for understanding the shape of the overall order. Global legal pluralism thus seeks to theorize the ways in which interactions between different normativities take place and their implications for a more general account of the structure of the global legal order. Some pluralists writing in this vein take a more analytical, others a more normative approach, but they all seek to capture situations in which law consists not of one, unitary legal order, but of a multiplicity of suborders with potentially competing claims to authority.

Framing the volume, this chapter introduces the notion of legal entanglements and lays out implications for our understanding of law and its dynamics. Entanglements – relations between norms from different origins that are neither integrated nor fully separated – are a core feature of the contemporary law beyond the state, and have been characteristic of law for much of its history, but they have long been neglected by legal scholars and theorists conceiving of the law through the prism of legal systems. This chapter traces the origins of the concept, manifestations and forms of entanglement, the dynamics behind them, as well as the consequences for the stability of political and social order. It also uses these engagements to introduce the different contributions to the volume and highlight the different ways in which they reconstruct and assess entanglement and its challenges.

Introduction

Times of transition are often more exciting than those of routine and continuity, but they are typically also disorderly and confusing. Old paradigms fade, but new ones only emerge slowly, and their multiplicity leads to protracted phases of co-existence, competition and conflict. The current ‘disorder of orders’ in the conceptualization of postnational law is a signal of such a transition and an indication of its depth. The ‘Westphalian’ system, with its clear separation between domestic and international levels of law and only relatively thin forms of coordination and cooperation in the latter, has broken down under the weight of Europeanization and globalization, but its successor has not been appointed yet. Several candidates are in the race, and one main dividing line – the one this chapter focuses on – is between constitutionalist and pluralist approaches to postnational order. Both of these come in many guises, but they typically differ in their understanding of central structural traits of the legal and political order. While constitutionalists, drawing on domestic inspirations, generally strive for a common frame to define both the substantive principles of the overall order and the relations between its different parts, pluralists prefer to see the postnational realm as characterized by heterarchy, by an interaction of different suborders that is not subject to common legal rules but takes a more open, political form.

This contrast may seem overdrawn; perhaps one should steer a less conflictive path and work towards reconciling these two visions in some form of ‘constitutional pluralism’. But such a conciliatory move would conceal, rather than bring into relief, the theoretical and practical differences that exist between constitutionalist, unity-oriented and pluralist, heterarchical conceptions. Even if in the current debate some of the positions may be relatively close, highlighting the contrast between the two strands will be useful to probe more deeply into their respective foundations and into the choices we face in the conceptualization and construction of the postnational legal order.

Sovereign equality is one of the great utopias of international law, but also one of its great deceptions. Just like the equality of individuals, the principle of sovereign equality of States embodies a far-reaching promise – a promise to abolish all unjustified privileges based on power, religion, wealth, or historical accident, a promise to transcend the blatant injustices of the international system. This utopian aspiration has always been one of the most appealing aspects of international law, has contrasted it to the blunt realities of international politics, and has helped raise the hope that international law can serve as a “gentle civilizer” of nations. But its contrast to the reality of power made sovereign equality also seem empty and unreal, and made international lawyers often appear – as they did to Kant – as “sorry comforters.” Torn between aspiration and reality, sovereign equality came to occupy an uneasy place: although international law has embodied the aspiration of sovereign equality since the sixteenth century, it consistently interprets it in a very restrictive way. When it comes to concrete rules, sovereign equality has for the most part been reduced to a few norms ensuring some degree of formal equality – mainly the requirement of consent for lawmaking, and freedom from other States' jurisdiction.