Do you believe that arbitrage courts are a form of hierarchical pluralism ? In common practice, most firms introduce clauses in their contracts to have disputes resolved by designated arbitrage courts because such courts have domain knowledge that normal courts do not have hence the expectation of a reasonable decision. Companies usually abide by arbitrated decisions despite having the possibility to go to the usual courts.
Patent and trademark law has its own courts (named boards) that are part of the patent offices in both the USA and Europe. Though subject to the authority of the usual upper courts, parties hardly ever appeal because the upper courts lack domain knowledge and may take absurd decisions.
Other fields may evolve their own specialised court system. Since normal judges are completely ignorant of the electronics and informatics behind their user-interface, many large and small firms want the creation of courts dedicated to IT issues.
Do you believe that the creation of specialised courts with increased autonomy may lead to hierarchical pluralism then to heterarchical pluralism ? Or it rather a tentacular form of monism ?
An excellent question for which I do not alas have an excellent answer. In fact, I think there are two separate questions here: one evaluative and one speculative. In that order:
Evaluating whether mediation/arbitration institutions are hierarchical pluralism, I certainly agree they're not heterarchical forms. However -- at the risk of splitting hairs (and reserving the right to revise my evaluation upon further reflection) -- I'd think that even hierarchical pluralism entails a realm of sovereign jurisdiction. That delimited sovereignty may be endorsed or delegated by an (aspiring) monist political sovereign, but it is effective, even if revocable. This would be in contrast to heterarchical pluralist institutions in which that sovereign jurisdiction is exercised with indifference to the opinion of the aspiring monist sovereign.
My understanding of mediation/arbitration tribunals, though (and I appreciate details will differ across jurisdictions), is that they are required to operate within the sovereign authority of the monist regime. If such a tribunal's finding can be appealed to and overturned by the monist sovereign's courts, then I'd call that little more than an outsourcing of monist sovereignty. Tentacular indeed. If they could make rulings which would be illegal in the monist sovereign's courts, but the latter allowed them to stand, I'd be more comfortable calling that hierarchical pluralism. An example of this might be the Sharia courts, or indigenous justice practices, that are allowed in some Western countries. But again, the devil would be in the details. Currently, I think such commercially focused tribunals or specialized courts are monist sovereign outsourcing allowed for the efficiency purposes of leveraging the kind of specialized knowledge that you describe.
As to the speculative question regarding whether such specialized courts may lead to hierarchical or even heterarchical pluralism: sure they could. Power dynamics are always fluid, and we seem to live in a time of considerable and rising instability.
As always, thank you for your thoughtful comment. I appreciate the spurring to refine my thinking. Regards.
Dear Evolved Psyché,
Do you believe that arbitrage courts are a form of hierarchical pluralism ? In common practice, most firms introduce clauses in their contracts to have disputes resolved by designated arbitrage courts because such courts have domain knowledge that normal courts do not have hence the expectation of a reasonable decision. Companies usually abide by arbitrated decisions despite having the possibility to go to the usual courts.
Patent and trademark law has its own courts (named boards) that are part of the patent offices in both the USA and Europe. Though subject to the authority of the usual upper courts, parties hardly ever appeal because the upper courts lack domain knowledge and may take absurd decisions.
Other fields may evolve their own specialised court system. Since normal judges are completely ignorant of the electronics and informatics behind their user-interface, many large and small firms want the creation of courts dedicated to IT issues.
Do you believe that the creation of specialised courts with increased autonomy may lead to hierarchical pluralism then to heterarchical pluralism ? Or it rather a tentacular form of monism ?
Greetings Archangel
An excellent question for which I do not alas have an excellent answer. In fact, I think there are two separate questions here: one evaluative and one speculative. In that order:
Evaluating whether mediation/arbitration institutions are hierarchical pluralism, I certainly agree they're not heterarchical forms. However -- at the risk of splitting hairs (and reserving the right to revise my evaluation upon further reflection) -- I'd think that even hierarchical pluralism entails a realm of sovereign jurisdiction. That delimited sovereignty may be endorsed or delegated by an (aspiring) monist political sovereign, but it is effective, even if revocable. This would be in contrast to heterarchical pluralist institutions in which that sovereign jurisdiction is exercised with indifference to the opinion of the aspiring monist sovereign.
My understanding of mediation/arbitration tribunals, though (and I appreciate details will differ across jurisdictions), is that they are required to operate within the sovereign authority of the monist regime. If such a tribunal's finding can be appealed to and overturned by the monist sovereign's courts, then I'd call that little more than an outsourcing of monist sovereignty. Tentacular indeed. If they could make rulings which would be illegal in the monist sovereign's courts, but the latter allowed them to stand, I'd be more comfortable calling that hierarchical pluralism. An example of this might be the Sharia courts, or indigenous justice practices, that are allowed in some Western countries. But again, the devil would be in the details. Currently, I think such commercially focused tribunals or specialized courts are monist sovereign outsourcing allowed for the efficiency purposes of leveraging the kind of specialized knowledge that you describe.
As to the speculative question regarding whether such specialized courts may lead to hierarchical or even heterarchical pluralism: sure they could. Power dynamics are always fluid, and we seem to live in a time of considerable and rising instability.
As always, thank you for your thoughtful comment. I appreciate the spurring to refine my thinking. Regards.