Cosmopolitan Normative Information: Patrick Glenn’s Legal Theory
By Richard Janda
Photo credit: McGill
Patrick Glenn did not tire to repeat that any attempt to produce definitive normative closure around legal traditions, common laws or the state was bound to fail. Drawing notably on the work of the contemporary philosopher Hilary Lawson, Patrick concluded that while law always entails an effort to settle or close the meaning of a norm, every such effort has a “texture” signifying the norm, which Lawson defined as “a difference that is held within the sameness of material”.[ref]Hilary Lawson, Closure: A Story of Everything (London: Routledge, 2001) at 83. See also H Patrick Glenn, “The Cosmopolitan State” (2013) 61 Kansas L Rev 735 at 744-45.[/ref] At the very end of his last book, the Cosmopolitan State, he affirmed that “closure is inherently problematic, and remains constantly vulnerable to surrounding texture and the challenge of new and different forms of closure.”[ref]H Patrick Glenn, The Cosmopolitan State (Oxford: Oxford University Press, 2013) at 292 [Cosmopolitan State].[/ref] This is the dynamic inherent to norms and indeed to language that renders legal traditions penetrable to each other by a form of informational osmosis, that allows common laws to traverse any instantiations in particular or local law (ius commune in relation to all iura propria) and that makes that most seemingly national and hermetic of legal institutions, the state, itself the technique through which cosmopolitanism is conveyed. Legal traditions, common laws and cosmopolitan states, if properly characterized and allowed to remain open-textured, were for Patrick the great conciliatory concert of humanity, our ways to produce a harmonious exchange and interplay of what he called normative information.[ref]Ibid at 9-11, citing Manuel Castells, The Information Age: Economy, Society and Culture. The Rise of the Network Society, vol 1, 2nd ed (Oxford: Blackwell, 2000).[/ref]
My purpose in these remarks is threefold. First, I will argue that Patrick Glenn’s contribution is not so much to the characterization and conceptualization of comparative law but rather to the characterization and conceptualization of law through the investigation and, I will dare say, deconstruction of processes of comparison. Second, I want to probe what I take to be the key ideas that unified his work: a) law as normative information conveyed by traditions, common laws and states;[ref]Cosmopolitan State, supra note 2, was the third of a trilogy of books exploring these dimensions of law. The other two were H Patrick Glenn, Legal Traditions of the World, 5th ed (Oxford: Oxford University Press, 2014) [Legal Traditions] and H Patrick Glenn, On Common Laws (Oxford: Oxford University Press, 2007) [Common Laws].[/ref] b) the persistence of the past in the present; c) conciliatory cosmopolitanism; and d) the emergence of non-monotonic, paraconsistent logic. Third, I want to offer some observations about subjects upon which Patrick seemed to maintain close to a studied silence: the relationship between norms and the economy; the emergence of world views open to and indeed seeking after discontinuity from the persistence of the past; and the relationship between law and justice.
- Patrick Glenn and Comparative Law
I find it striking that the great comparative lawyer, Patrick Glenn, does not have an entry on comparative law in the table of contents or the index to his last book, the Cosmopolitan State, which I think must rate as his most ambitious work. I was only able to find one rather slighting reference to comparative law toward the end of that book:
The relations of states to one another are marked by cosmopolitan logic, in varying degrees. During the attempts at territorial and national closure binary logic was the order of the day, though its limits were evident in the necessary emergence of the disciplines of public and private international law and comparative law. These in their turn were constructed as much as possible along binary lines. […] Even comparative law was conceptualized as aiming at taxonomic classification of legal systems, though the project failed entirely.[ref]Cosmopolitan State, supra note 2 at 288, n 199.[/ref]
There is here a crucial and subtle feature of Patrick’s thought. What attracted him to the discipline of comparative law was what its very existence exposed about the impossibility of hermetically sealed systems of national law. The only time I saw Patrick intellectually impatient and quite vehement in his choice of words was when he encountered the notions of legal system and normative incommensurability – heaven forbid at once.[ref]H Patrick Glenn, “Doin’ the Transsystemic: Legal Systems and Legal Traditions”; H Patrick Glenn, “Are Legal Traditions Incommensurable?” (2001) 49 AJCL 133.[/ref] For Patrick, these were nonsense. There was no way for norms to produce a self-contained whole and there was no way for norms simply to exclude each other.
Instead, there were relative degrees of normative closure and sets of interacting antinomies.[ref]Patrick found territorial form of closure in the idea of borders necessary to sovereignty but always generative of contestation: see H Patrick Glenn, Strangers at the Gate: Refugees, Illegal Entrants and Procedural Justice (Cowansville, QC: Yvon Blais, 1992); H Patrick Glenn, « La conciliation des lois (Volume 364) » Collected Courses of the Hague Academy of International Law (Leiden: Nijhoff, 2013) 202-05, [Conciliation des lois].[/ref] At the zenith of the doomed effort to produce national legal systems, comparative law reared its head so as to remind us of the reception of laws, of persuasive authority and thus ultimately of the interpenetration of all normative enterprise.[ref]H Patrick Glenn, “Persuasive Authority” (1987) 32 McGill LJ 261.[/ref] Comparative law was interesting for what it pointed towards, not for what it accomplished on its own. Indeed, taxonomic, binary comparative law (as in “civil law is not common law”) participated in the very effort to construct legal systems that its existence as a discipline belied. If indeed legal systems were hermetically sealed and incommensurable, there would be no point to comparison; no normative information that could be conveyed from one system to another so as make it possible for the comparison to be held up as a mirror. The very possibility of comparative law inspired in Patrick an unshakeable conviction in our ability to pursue reconciliation despite our deepest differences. Law could come to serve that purpose.
- Patrick Glenn’s Key Concepts
(a) The law as a body of normative information
I turn then to what I have sought to isolate as Patrick’s key concepts. The first is a lurking one that never receives much explicit explanation: law is a body of normative information. Here is a passage from his article on transnational common laws that comes as close as I have found to such an explanation:
How do common laws undertake a dialogue, however, with the large, dumb animals which national legal systems would be, according to positivist legal theory? How does one engage in normative debate with a large and apparently silent fact? It does involve a reconceptualization of state law, which can no longer be seen as an unchallenged, autonomous social reality. Rather, state law must be seen as an ongoing normative construction, drawing support from all possible sources. It must be seen again as it is and always has been, a particular, variable and contingent instantiation of a common law, or even in some cases, of common laws. The state is thus an informational node within a larger body of normative information, or more precisely, legal tradition. There is normative information within state law, as all lawyers know, and it is not limited to the precise content of particular rules. It also relates to the imperative or non-imperative force of such rules, and the reasons for their application. If such imperative force of state law can be found and justified, it will prevail against the common law which serves as its foundation and ongoing supplement. This is the teaching of all of the common laws, but they remain constantly available in the face of doubt as to the applicability, or adequacy, of particular (state) laws.[ref]H Patrick Glenn, “Transnational Common Laws” (2005) 29:3 Fordham Intl LJ 457 at 468.[/ref]
I am struck by the line being traced here between, say, Hart’s positivism that acknowledges the core and penumbra of a rule and, say, Kennedy’s Critical Legal Studies position about law’s indeterminacy.[ref]On the relationship between the core and penumbra of a rule, see HLA Hart, The Concept of Law, 3rd ed (Oxford: Oxford University Press, 2012) at 124-54; HLA Hart, “Positivism and the Separation of Law and Morals” (1958) 71:4 Harv L Rev 593. On the pervasive indeterminacy of law, see Duncan Kennedy, “Form and Substance in Private Law Adjudication” (1976) 89 Harv L Rev 1685 at 1723; Duncan Kennedy, “The Critique of Rights in Critical Legal Studies” in Brown and Halley, eds, Left Legalism/Left Critique (Durham: Duke University Press, 2002) 178 at 192. For a discussion of the relationship between Hart’s notion of “the penumbra of uncertainty” and the more radical CLS account of legal indeterminacy, see Ken Kress, “Legal Indeterminacy” (1989) 77:2 Cal L Rev 283 at 287-88.[/ref] To Hart, Patrick is saying: “your notion of penumbra ultimately destabilizes the fixity of legal rules and makes a settled rule of recognition impossible. » To Kennedy, Patrick is saying: “your emphasis on indeterminacy and ultimately upon ideology and power fails to acknowledge the ways in which norms are gathered together and traversed by states, common laws and traditions.” It is the apparent neutrality of the term “normative information” that allows Patrick to weave between the Scylla and Charybdis of positivism and indeterminacy. Yet how adequate and compelling is that term? Information communicates knowledge. The Torah certainly contains normative information. I hope that this text does as well. Arguably so does the user guide to my coffee maker (“Warning: Hot Beverages are Hot”). Patrick imagines that each of these contributes to the bran tub of information – his striking metaphor – that is a legal tradition.[ref]Legal Traditions, supra note 4 at 13.[/ref] A tradition contains all relevant normative information stretching into the past but has itself a tendency toward closure, which entails a plurality of traditions marked by perceived foundational accounts, notably religious.
What does it mean to use normative information from that bran tub? According to Patrick’s account information is selected according to its social need but by means of and through the repository of information, namely the tradition. The repository of normative information thus also contains information about how to select information. Here, Hart’s positive rule of recognition and Kennedy’s indeterminacy seem to fuse. However, a tradition’s normative information is traversed by common laws seeking to render the continuity of the tradition, and state laws seeking to render its particularity. Hence Patrick’s three basic units of analysis: traditions, common laws, and states.
(b) The changing presence of the past
The second unifying concept I wish to probe is his idea of the persistence of the past, or what he also calls the changing presence of the past. This retrospective continuity prevails even in the face of revolution, which Patrick insists cannot change everything: “[n]ew forms of closure are inevitably constrained by the historical legacy of prior closures.”[ref]Cosmopolitan State, supra note 2 at 113.[/ref] There is an “Owl of Minerva” quality to Patrick’s insistence that “[i]nnovation is always defined ex post, something that is later deemed to be exemplary”.[ref]Ibid at 70.[/ref] Thus for Patrick we can only come to see the legacy of innovation; in the midst of it, we cannot yet say that it is not what he calls “the usual banging-around.”[ref]Ibid.[/ref] It is continuity – indeed continuities – with the past that allow us to reconcile disparate normative information; for example, secular and religious norms.
(c) Conciliatory cosmopolitanism
The third unifying concept is conciliatory cosmopolitanism. Patrick eschews what he calls “strong cosmopolitanism” that envisages supranational closure around a world government. What attracts him instead is what he claims to be the usual definition of the word cosmopolitan, namely “having the characteristics which arise from, or are suited to, a range over many different countries.”[ref]Ibid at n 2.[/ref] Citing Stephen Toulmin, he pleads for the coming together of kosmos and the variations of a polis, allowing for a rooted and differentiated rather than universalistic cosmopolitanism.[ref]Ibid at 177.[/ref] The cosmopolitan state is for Patrick the forum for developing practices of coexistence and conciliation. His 2013 course on Private International Law at the Hague Academy was called “La conciliation des lois” not “Le conflit des lois”.[ref]Conciliation des lois, supra note 7. There is a more than superficial parallel to the idea of truth and reconciliation: see Truth and Reconciliation Commission of Canada. Honouring the Truth, Reconciling for the Future, Final Report, (Montreal: McGill-Queen’s, 2015).[/ref]
(d) The non-monotonic, paraconsistent logic
The fourth unifying concept, which is perhaps the most difficult and certainly the most abstract, is that of non-monotonic, paraconsistent logic. Patrick’s fascination with and deep investigation of theories of logic paralleled his inquiry into law. Pace Holmes – indeed Patrick wrote an extended meditation of Holmes’s aphorism about the law and logic – for Patrick law and logic are intertwined.[ref]Cosmopolitan State, supra note 2 at 259-90; Oliver Wendell Holmes, The Common Law (London: Macmillan, 1882) 1: “The life of the law has not been logic; it has been experience.”[/ref] Law’s failure to obey classical logic points toward an inadequacy of binary modal logic and its principle of the excluded middle. The argument here concerning the function law plays for logic is entirely parallel to the argument concerning the function that comparative law plays for law. Thus Patrick celebrates the attempts by logicians to formulate theories of multivalent (non-monotonic) logic to cope with examples of indeterminacy, antinomy and defeasibility in legal reasoning. What he calls the “many valued turn” in logic, allowing for degrees of truth and the simultaneity of contradictions, is precisely what he claims characterizes the logic of cosmopolitanism. The last quotation in the Cosmopolitan State is from Deleuze and Guattari: “jamais personne n’est mort de contradictions.”[ref] »No one has ever died of contradictions’’ (Cosmopolitan State, supra note 2 at 291) from Gilles Deleuze and Félix Guattari (R Hurley, M Seem and H Lane trans) Anti-Oedipus (London: Continuum, 2004) 166; Gilles Deleuze and Félix Guattari, L’Anti-Oedipe (Paris: Les Éditions de Minuit, 1973) 178.[/ref]
Taken together, law as normative information conveyed in traditions, common laws and states, the persistence of the past, conciliatory cosmopolitanism and non-monotonic logic constitute Patrick Glenn’s legal theory. It is not a theory of comparative law. It is a theory of how to engage with law toward reconciliation.
- The Missing Pieces
Given that ambition, I conclude with some thoughts about subjects upon which Patrick remains discreet and almost silent. As wide-reaching and erudite as his writings are, they seem to hide their relationship to economics, the process of social change, and justice. Since I alluded to the Owl of Minerva, I am being self-consciously left-Hegelian here.
As best I can tell, Patrick thought of economic accounts of normative information as seeking too hermetic a form of closure around a narrow perspective on rationality. In Legal Traditions of the World, his citations to economic literature tend to be dismissive (e.g. the economic notion of path dependency “tells us little of the source and content of the normative information of different traditions”[ref]Legal Traditions, supra note 4 at 17.[/ref]). And yet the economy is the nomos of the oikos – the norms to manage our relationship to our surroundings – and so it contains and responds to normative information. Economics seems to beg for inclusion in Patrick’s theory and truly has insinuated itself into the formulation and transmission of legal norms at least within what we have come to call modernity – a frame that does not fit neatly into Patrick’s units of analysis and one that also conveys a traversing common law. Of course Patrick does take up lex mercatoria. But the laws of supply and demand are another matter.
As regards discontinuity and transformation in legal orders, Patrick offers three partial points of entry. The first is the notion that world views can shift in discontinuity to the existing normative closure being reproduced. Implicit though unarticulated is the idea that this closure is being revealed as incapable of reconciling mounting normative antinomies; hence the changing world views. It seems however that the category “world view” operates apart from the category “normative information”. A second possible point of entry is that the encounter of traditions, common laws and states generates shifting perceptions of need. The third, and partially opened point of entry, is that changing techniques of communication, notably from oral to written expression of tradition, generate discontinuities.
Are there other discontinuities created by the changing media for the conveyance of normative information? Patrick was fascinated by the information age and the emergence of computer networks.[ref]H Patrick Glenn, “The Use of Computers: Quantitative Case Law Analysis in Civil and Common Law” (1987) 36 ICLQ 360.[/ref] But he remained a theorist of persistence and continuity rather than of disruption and discontinuity. That his admiration of non-monotonic allowed him to preserve that binary division might be ascribed to his speculation that the “many-valued turn” could lead to a multiplicity of binary outcomes. Even this inner antinomy to his work may well have generated a knowing shrug that binary logic itself will persist.
Finally, what of the relation between law and justice? Justice is a term Patrick seems to have been shy to use and corresponds to a general orientation of his writing toward describing the dynamics of normative information, not producing a program for its interpretation, application, reform or evaluation. At the same time, however, there is no mistaking the purpose that his descriptive activity seeks to fulfill. A proper open-textured orientation toward legal traditions, common laws and cosmopolitan states can lead toward the highest form of justice Patrick envisaged: the conciliation of laws. And so Patrick quietly sought to bridge “is’’ and “ought’’, “law’’ and “right’’, “conflict’’ and “reconciliation’’. How fortunate to have had a colleague with such ambitions. How heavy the burden to ensure that there be persistence to the normative information he conveyed.