Their insistence on the existence of a singular approach to debate is jurispathic, not jurisgenerative. The fear of otherness becomes a justification to exclude other models of debate and seals debate to a singular heteronormative model that refuses clash with alternative models.

SELF, OTHER, AND THE NEGOTIATION OF DIFFERENCE How do we encounter the Other? How do we experience those who are different? Can we communicate? Can we live in parallel? Can we learn from those who are different? Can we ignore them? How do we manage the inevitable jostling that may arise? These are questions that are simultaneously psychological, sociological, political, and legal and, therefore, should be addressed on many different levels at once. One possible response to the encounter with the Other is to focus on those attributes that make the Other not so different at all. This is the “we’re all fundamentally the same” gambit we hear so often. And, interestingly, this focus on sameness can be adopted both by die-hard nationalists—who use it to insist that “our” norms (whoever the “our” might be) should govern all—and committed universalists, who use it to push for uniform norms operating cross-culturally throughout space and time. In this same vein, some sociological studies of communication start from the idea that interpersonal interaction requires both parties in an encounter to believe (or at least assume) that the other is not truly other at all.17 According to this view, most associated with Alfred Schutz,18 differences in individual perspectives are overcome only if each party tacitly believes that he or she could effectively trade places with the other. As Schutz describes it, “I am able to understand other people’s acts only if I can imagine that I myself would perform analogous acts if I were in the same situation.”19 Thus, differences in perspective are reduced to differences in situation. Any, possibly more fundamental, differences are suppressed to facilitate dialogue. As a result, the deliberate assuming away of the unfamiliar is seen as a constant part of everyday life. The unfamiliar is relegated to the category of “strange,” and “strangeness” necessarily is placed elsewhere, somewhere other than the interaction at hand.20 Moreover, Harold Garfinkel and other ethnomethodologists have argued that individuals do not simply passively maintain these assumptions but are constantly engaged in a joint enterprise aimed at sustaining this familiarity.21 In all of these studies, the emphasis is on “the human production of common worlds of meaning as the only axis on which dialogue rotates.”22 But is that all there is to the experience of the Other? Is it really imperative constantly to assume that our fellow human beings are fundamentally identical to us? After all, “[u]nder this principle, if a dialogue is to take place, strangeness as a phenomenon of everyday interaction must be considered negatively, namely, as that part of an encounter that must be constantly ‘assumed away’ by the participants.”23 Thus, we are left with a world in which people are classified either as familiar or as strangers. Even more problematic, these studies suggest that it will be simply impossible to bridge the communication gap with those deemed strangers. Yet, as Georg Simmel noted long ago, the stranger is never truly distant,24 so there will need to be some way of bridging gaps short of assuming away strangeness altogether. On the other hand, we might respond to such encounters with the Other by retreating to a gated community and trying to lead a hermetically-sealed existence. Here, the Other remains fully Other, and no communication is possible. Both of these responses, when translated to law, are fundamentally jurispathic. They kill off competing interpretations by authoritatively saying that this is the law and that is not. So, either a single nation-state’s norms govern or one universal law governs. Such jurispathic legal assertions may sometimes be effective, necessary, or desirable, but they are not the only ways to structure legal relations among multiple communities. Indeed, they both represent a fundamental retreat from hybridity. Yet, hybridity is difficult to escape in a world of overlapping jurisdictions and normative diversity, where— as the pluralists would say—multiple conflicting legal systems occupy the same social field. The question therefore often becomes: are there other approaches to managing pluralism? Can we come up with a more pluralist constitutional order? What are the constitutional principles we might apply? Unlike the universalist approach, a pluralist vision does not require people to be conceptualized as fundamentally identical in order to be brought within the same normative system. Nor does a pluralist vision render outsiders irrelevant, as sovereignist territorialism does. Instead, pluralism attempts to navigate a different path altogether. A pluralist constitutional frame asks whether we can seek solutions without assuming commonality or seek harmonization while preserving the insistence on difference that contextualists rightly emphasize. In short, pluralism questions whether we are doomed either to require commonality or to essentialize difference. Are those truly the only possible approaches? Think again of how we encounter a stranger. Do we necessarily see that stranger as fundamentally the same as we are or fundamentally different? Might not we see (and celebrate) important differences while seeking ways to bridge those gaps so that we might communicate with each other and live peaceably side by side? Perhaps we might draw from Hannah Arendt, who offers a different way of conceptualizing the encounter with the stranger. Instead of assuming commonality, she seeks, in Understanding and Politics, the quality that “makes it bearable for us to live with other people, strangers forever, in the same world, and makes it possible for them to bear with us.”25 Note that for Arendt, the task is how to “bear with” strangers, even while recognizing that they will forever be strange.26 Arendt’s strategy for bearing with strangers is more than just mutual indifference and more than just toleration as well. It “involves a mental capacity appropriate for an active relation to that which is distant,”27 which Arendt locates in King Solomon’s gift of the “understanding heart.”28 Understanding, according to Arendt, “is the specifically human way of being alive; for every single person needs to be reconciled to a world into which he was born a stranger and in which, to the extent of his distinct uniqueness, he always remains a stranger.”29 What does “understanding” entail for Arendt? This is a bit difficult to pin down, but she makes clear that understanding is not gained through direct experience of the Other, and it is not just knowledge of the other.30 Instead, understanding starts from the individual situated apart from others. Thus, instead of “feeling your pain,” understanding involves determining what aspects of the pain people feel have to do with politics and what politics can do to resolve our common dilemmas. Moreover, “[u]nderstanding can be challenged and is compelled to respond to an alternative argument or interpretation.”31 In short, understanding in Arendt’s formulation looks a lot less like empathy and a lot more like judging.32 While assuming sameness leads to a universalist harmonization approach, Arendt’s more distanced conception of the encounter with the stranger is akin to the pluralist vision I am pursuing as an alternative. Likewise, consider Iris Marion Young’s idea of “unassimilated otherness,” which she posits as the relation among people in the ideal “unoppressive city.”33 Young envisions ideal city life as the “‘being-together’ of strangers.”34 These strangers may remain strangers and continue to “experience each other as other.”35 Indeed, they do not necessarily seek an overall group identification and loyalty. Yet, they are open to “unassimilated otherness.”36 They belong to various distinct groups or cultures and are constantly interacting with other groups. But, they do so without seeking either to assimilate or to reject those others. Such interactions instantiate an alternative kind of community,37 one that is never a hegemonic imposition of sameness but that nevertheless prevents different groups from ever being completely outside one another.38 In a city’s public spaces, Young argues, we see glimpses of this ideal: “The city consists in a great diversity of people and groups, with a multitude of subcultures and differentiated activities and functions, whose lives and movements mingle and overlap in public spaces.”39 In this vision, there can be community without sameness, shifting affiliations without ostracism.