ABSTRACT
The study of the plurality of legal orders must abandon the pluralist ‘paradigm’. 1 It is at best superfluous; at worst, it is confused. The first contention concerns legal pluralism as a descriptive approach to law and does not mean that all the claims of legal pluralism are wrong, but that they are poorly made by this so-called paradigm. The second concerns legal pluralism as a normative approach. The best statement of the first critique belongs to Tamanaha (Section II), who demonstrates the absence of anything even approaching an agreement within pluralism regarding the notion of law or legal order, a flaw that leaves pluralism vulnerable to being criticized as panjuridicism. As for the second critique, it has been barely sketched out by a handful of scholars, among them Waldron. Yet pluralism can above all be explained as a political attitude, which defines its claims and arguments so poorly that one may suspect it of being an aesthetic position. More often than not, its proponents fall into performative contradiction by, without further nuance, claiming at the same time to adhere to the Rule of Law, whose formal control principle includes an ineradicable core of legal and judicial monism (Section IV). This is because the political stance of legal pluralism is generally inexplicit and undefended. Much more than an instructive example of this is the epitomic Romano, with whom every discussion on legal pluralism should start. I have decided, however, to start with sources more familiar to my expected reader, all the better to allow a careful examination of Romano’s canonical work, supplemented by minimum intellectual-biographical information, to show perfectly the shift from front-science to hidden or unconfessed political agenda. One has to choose between Romano’s two main theoretical and, as a matter of fact, pluralist theses – those of law as fact and of ‘relevance’ as a fruitful concept of legal relationships between legal orders. More exactly, the second thesis, which is more specific, refutes the first, which – properly understood as an argument against Kelsen – was meant to be the foundation of legal pluralism. My claim is that this has to be taken as symptomatic (Section III).
