Mindful of the World: “A Cosmopolitan Jurisprudence”
April 12, 2023
[Editor’s note: this is the final of four blog posts featuring the volume “A Cosmopolitan Jurisprudence: Essays in Memory of Patrick Glenn”, edited by Helge Dedek, Cambridge University Press, ASCL Studies in Comparative Law, 2022]
It has been a long journey from the first tentative ideas to the publication of this collection in memory of an esteemed colleague and beloved friend. The first working title for the collection, alluding to Patrick Glenn’s indefatigable idealism, was “Sustainable Diversity in Law” – borrowed from the original subtitle of his book Legal Traditions of the World that Glenn himself dropped in later editions. However, along the way one specific theme gained prevalence, namely that Glenn’s ideas went beyond targeting the traditional comparatists’ fixation with state law but ultimately sought a novel way of thinking about law writ large: the bold ambition to conceptualize law entirely through the experience of plurality and diversity.
For Glenn, “Comparative Law” was the inevitable disciplinary home to develop such a pluralistic vantage point, a mode of thought accessible to those who defy being intellectually circumscribed by only one national tradition, one methodological framework, one value system. Embracing the relativity of perspective would open the possibility of recognizing oneself in the Other and would pave the way to an understanding of “comparison” beyond traditional “comparative” analysis. The aim was thus eventually, as Glenn put it, a “cosmopolitan legal theory” that would hold up a mirror to conventional legal thought, and “play the role of a ‘critical theory’ in presenting alternatives to current forms of normativity, whatever their forms” [H.P. Glenn, Differential Cosmopolitanism, 7 Transn’l. L. Theory 57, 69 (2016)].
This fundamental challenge to methodological nationalism might just be the most thought-provoking aspect of Glenn’s work, and potentially the most relevant to the many ongoing similar discourses across various disciplines. This ambition and audacity to think about law differently, in a genuinely “cosmopolitan” way, inspired the collection’s eventual title: “A Cosmopolitan Jurisprudence.”
In this context, (cosmopolitan) “jurisprudence” seemed the more fitting label than that of a “theory.” While we associate, in casual usage, “jurisprudence” with any kind of scholarly treatment of law, the semantics of prudence and prudentia are historically connected to a scholarship that is characterized by learnedness and judiciousness – the reigning paradigm of legal scholarship until it began to be replaced by scientia, science, as the paradigm for all university disciplines. In addition, prudentia, used to translate the Greek “phronesis,” has traditionally been tied in Western philosophy to forms of intuitive, practical wisdom, gained from experience [see e.g. D. Randall, The Prudential Public Sphere 44 Philosophy & Rhetoric 205 (2011)]. Glenn’s intellectual trajectory was that of someone trained in the law who felt compelled to step outside traditional disciplinary boundaries by the actual experience of diversity and otherness, experience gained as a comparatist and traveller of the world. Intellectually, he was an avid traveller as well: uniting shards and pieces from various works and disciplines into an original pluralist mosaic that made sense of this experience. It comes to mind that, as Ulf Hannerz [Cosmopolitans and Locals in World Culture, 7 Theory, Culture & Society 237, 239 (1990)] once observed, “cosmopolitans should ideally be foxes rather than hedgehogs.”
The visceral appeal of such “phronetic wisdom” is probably one of the reasons why the metaphoric reference to art, especially the piece “Black Whole Conference” by Montreal artist Michel Le Broin, eventually took on such a prominent role in my own introductory chapter. Of course, as we all know, another aspect of this unconventional nature of Glenn’s work was that it was open to criticism on many fronts, and that critics at times were harsh in their judgment. It seems to me, however, that it is particularly this quality of triggering the urge to voice disagreement, this “irritating” quality that will keep fuelling important conversations and inspiring other unconventional ideas. Accordingly, the collection was never intended as a hagiography but as a respectful yet critical engagement with Glenn’s ideas – in other words, as the continuation of the kind of intellectually honest conversation that Glenn himself enjoyed so much in his lifetime [cf. A. Halpin, The Application of Bivalent Logic, and the Misapplication of Multivalent Logic to Law, in H.P. Glenn & L. Smitheds, Law and the New Logics 208 (2017)].
I believe, for example, that Glenn’s focus on the concept of “tradition” is an extremely valuable stimulus to further explore and take more seriously the discursive characteristics of “law”, shifting the perspective onto the historicity of the methodological nationalism in law itself – a move that allowed Glenn to speak, counter-intuitively perhaps, of the state itself as a tradition.
However, I find unconvincing that, in their anti-statist and anti-positivist thrust, Glenn’s ideas mostly tune out the dimension of law as power, as force, as violence. In Glenn, this is not just a matter of analysing “law” from a particular perspective that sheds light on its discursive nature in a way that positivistic or sanction-oriented theories of law will not. Rather, Glenn derives an odd normative twist from the analytical finding that each tradition is, essentially, communication: “communicative action” as such can navigate and overcome conflict. For Glenn, introducing the tradition-concept itself thus creates an epistemological framework for the (re-)conciliation of, and between, traditions. Traditions are, due to their communicative structure and nature, by definition “commensurable” and thus open to dialogue [on another aspect of this normative bend, cf. M. Krygier’s blog entry Thinking too well of traditions].
Yet in a global order characterized by a post-colonial hegemonic hierarchy, the challenge of (re-)conciliation presents itself specifically against the backdrop of a history of injustice and violence, and in the context of conditions of inequality in which recognition of the non-hegemonic tradition is never fully realized. The bias against acknowledging the role and presence of violence in all of legal discourse ultimately manifests itself in a lack of sensitivity towards the epistemic violence inevitably implied in the assumption of “commensurability.” That is at least the case as long as it is not acknowledged that the “common measures” upon which “commensurability” is predicated, (that is, the ‘universal’ language and the concepts that determine the framework of commensurability) typically are those imposed by the hegemonic tradition [see e.g. J. Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity 39 (1995)].
Going forward, a “cosmopolitan jurisprudence” (or even “cosmopolitan critical theory”) will have to acknowledge that certain non-Western, especially Indigenous traditions, completely elude Western imagination and verbalization. As Canadian Indigenous scholar Aaron Mills has suggested, an assumption not of universalizing commensurability but rather of radical incommensurability might be therefore the truest form of recognition [see A.J. Mills, Miinigowiziwin: All that Has Been Given for Living Well Together: One Vision of Anishinaabe Constitutionalism, 45 (2019)].
However, despite its flaws, Glenn’s “cosmopolitan jurisprudence” was based on the uncontestably right intuition: to necessity to challenge the methodological nationalism in law that is such a strange anachronism in our global age. Phronesis/prudentia, suggested another unconventional thinker concerned with breaking down boundaries between traditions [Thomas McEvilley, The Shape of Ancient Thought 609 (2002)], could also be translated as “mindfulness”: if Glenn’s jurisprudence has contributed, even just a little bit, to making us more mindful of this necessity, to making us jurists more mindful of the world, we are all better for it.