Normative Legal Theories: The Case for Pluralism and Balancing

Abstract

Normative legal theories make recommendations about what the law should be. They may be “pluralist” or “monist.” Robust pluralist theories justify their recommendations by considering and, when necessary, balancing all relevant values. Monist theories consider one and only one value and, consequently, hope to avoid balancing competing values. Monist theories, such as those based on economic efficiency alone, have proliferated in recent decades. This Article is the first to explore in depth pluralism, balancing, and the monism of monist legal theories. It argues that pluralism and balancing are normatively appealing while monism has serious deficiencies. Consequently, it concludes, all normative legal theories should be pluralist.

Keywords: Legal Theory, Law and Economics, Contracts