Legal Pluralism

The endeavour to project a constitution for the EU, although (it seems) irreversibly incapable of acquiring legitimacy through any activation of pouvoir constituant, has begun increasingly to rely on doctrines of legal pluralism. In this regard, it is possible to observe that an intriguing, subtle, and in itself telling, shift of paradigm is at play. In its initial construction, the doctrine of legal pluralism typically informed analyses focused on the sphere of private law, whose patchwork patterns of norm production these analyses expressly contrasted with the relatively monistic system of public law, formalized around the constitutions and formal codes of civil law promulgated under post-1789 states. Earlier accounts of legal pluralism specifically challenged the existence of public law as a predominant normative corpus, and they focused on examining the de facto public-legal functions of seemingly private-legal arrangements (Ehrlich 1989 [1913]: 330). Indeed, the interest in law’s pluralistic formation, assuming salience in the early 19th century, might be seen as an approach standing at the inception of a spectrum of distinctively sociological approaches to law, which were marked by a specific rejection of the static models of public-legal normativity characterizing constitutionalism in the strict and classical sense. At a general level, this private-law emphasis still persists in much of most important contemporary analysis of legal pluralism, which also opposes