RESOURCES FOR RECOVERING GEMEINSCHAFT

PART 1: LESSONS OF LEGAL PLURALISM

Series Index:

PART 2: DISSPELLING THE AMERICAN KINGSHIP MYTH

PART 3: FURTHER DISSPELLING OF THE KINGSHIP MYTH

PART 4: FROM LEGAL PLURALISM TO STATE SOVEREIGNTY (AND BACK?)

PART 5: GROSSI ON THE MEDIEVAL CONSTITUTION

PART 6: MEDIEVAL PLURALISM VS. ROMAN LAW

PART 7: RETURN OF THE PRINCE (OR THE SCHOLAR)

PART 8: THE INITIAL INTEGRATION OF ROMAN LAW

PART 9: FROM MEDIEVAL CONSTITUTION TO MODERNITY

PART 10: FROM HUMANISM TO NATURAL LAW (AND CAPITALISM)

PART 11: THE LEGAL ENLIGHTENMENT'S RISE OF THE MANAGERIAL CLASS

PART 12: PLURALISM STRIKES BACK (THEN’S PUNCHED IN THE FACE)

PART 13: THE COMMON LAW SUBVERSION OF PLURALISM?

PART 14: THE NEGLECTED PERSISTENCE OF LEGAL PLURALISM IN POST-CONQUEST ENGLAND

PART 15: GRIFFITHS’ PARSING OF THE MEANING OF LEGAL PLURALISM

PART 16: FEDERALISM AS PLURALISM

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My ongoing argument has been that a pluralist federal populism provides a means for creating the soft-landing conditions required to mitigate the eventual, inevitable crash arising from the excessively space biased society which is the product of the unconstrained vision and positive feedback loop of the radical rationalism, individualism, and universalism of French Enlightenment informed spatialism. For new readers, who may find those remarks obscure, it is recommended to read my new book, A Plea for Time in the Phenotype Wars. 

Up until now, my emphasis in treating pluralism has been in the context of “the political” and governance. However, there is a long and important tradition of scholarship that goes under the rubric of legal pluralism, which has much to say to the pluralist federal populism project I've been exploring on this substack and in the recent book. I hinted at my exploration of this topic in a recent post on U.S. constitutionality. But there's so much more to be said on this topic. 

In the introduction to past series, I've attempted to provide a road map of what was going to be covered. I don't think I can do so with this series. It’s going to be a bit more of an open-ended exploration. It will definitely blow through any prior record of series length on this substack. I anticipate several different scholars and schools of thought will be sampled, but how it all fits together is still a work in progress. But as virtually all my reading for a while now has been focused on this area, somehow all that will take shape in this set of commonly themed posts. In a sense, the last post, responding to Schmitt's criticism of pluralism, helps ease us into the topic. Though, despite being a jurist, Schmitt’s criticism was still too focused on questions of governance to qualify directly under the series’ rubric.

Political pluralism carries a connotation of polycentricity, in which different entities are attributed important political and/or governance significance. In my recent book, the emphasis was largely counterfactual, looking at how pluralism was destroyed in contexts where spatialism has been triumphant: e.g., in the English pacification of the Scottish Highlands; the enclosure movements; and the French Revolution’s confrontation with the French peasantry. In the recent series on Mack Walker’s history of the German hometowns, a positive analysis is provided, analyzing how those towns managed for centuries to preserve temporalist institutions and values, nurturing organic community and independent intermediary institutions, including though not restricted to the trade guilds. Of course, because the phenotype wars always play out, in broad strokes, in a space-biased direction — modernity is the habitus of the spatials — ultimately such German gemeinschaft was on the wrong side of history (at least, for now).

What we’ve hopefully learned from all this has been something about what more temporalist, gemeinschaft society might look like; what values, norms, and institutions promote such time biased society; how temporalists might protect and defend those values, norms, and institutions; and of course, the kind of risks and threats posed to such a society by spatials. Indeed, the Walker series revealed that those risks and threats, experienced by the German hometowns for hundreds of years, are not so different from the spatialist risks and threats of today. The only hope I could see for temporalist gemeinschaft to persevere today, as a bulwark against, and cushion for a soft landing from, the relentless spatialist march through the phenotype wars, is a conscious, deliberate effort to preserve the social room for temporalist values, norms, and institutions. Such effort would benefit from being informed by a deep historical understanding of the precedents and resources which have and might shelter the space of intentional gemeinschaft.¹

Toward that end, there are many lessons available in the legacy of legal pluralism. The near hegemony imposed by the spatials over the course of the 20th century has occluded any recognition – much less a deep understanding – of key intellectual resources which might provide valuable conceptual and institutional tools to those temporals who aspire to create the conditions for a soft landing in the next, decisive arc on the spiral of the phenotype wars. That 20th century spatialist hegemony not only has deformed a correct, historical understanding of concepts like the “the right” and conservatism, turning them into domesticated semantic pets of the spatialist regime; it also has entirely captured and rendered cartoonish contemporary understanding of such foundational political concepts as constitution, kingship, sovereignty, and of course above all, various manner of law: e.g., customary, common, natural, foundational.

A deep dive into the history of legal pluralism will help recuperate some of that cognitive detritus. Certainly, the main event will be a thorough, multi-installment review of Paolo Grossi's brilliant history of European Law. But there'll be much more to come (perhaps) during and (certainly) after that. But before Grossi, I want to start with a couple installments dispelling a persistent myth which continues to occlude clear understanding about legal pluralism. (That’s about as much of a roadmap as you’ll get!) 

Possibly, such semantic and conceptual recovery will contribute to a renewal of those intellectual resources which might help a temporalist project, such as the pluralist federal populism I’ve proposed. Indeed, it may help create the conditions that could reduce the misery likely to result as the phenotype wars play themselves out. In any event, that’s the reason I’ll be dedicating this extended series to the topic of legal pluralism.

So, if you want to keep up on those developments, and you haven’t yet, please…

If you want to better understand the context of this analysis and series, and you haven’t yet, please read my most recent book, A Plea for Time in the Phenotype Wars.

And, of course, if you know any kindred spirits, who’d find value in this sort of thing, please…

Meanwhile: be seeing you!

1. Of course, under the temporalist hegemony of a time biased society, gemeinschaft would be organic, in its communities and traditions, not intentional. In the accelerating days of space biased society, the norms, value, and institutions of temporalism have been so thoroughly eroded and even stigmatized, only an intentional effort could replicate them to sufficient extent that they may act as the cushion for the hoped soft landing.