Is Argumentation Theory Applicable for Legal Pluralism?

André Ferreira Leite de Paula, Andrés Santacoloma Santacoloma (eds.), Law and Morals, ARSP 158/2019

7 Pages Posted: 19 Mar 2020

See all articles by Gabriel Encinas

Gabriel Encinas

Scuola Superiore Sant'Anna di Pisa

Date Written: 2019

Abstract

Normative pluralism may be understood in opposition to universalistic accounts of rationality. The purpose of this paper is to identify one way in which both conceptions require each other. A case will be made that in contemporary law, there is a necessary tension between the universalism of constructivist theories of normativity on the one hand, and normative accounts of pluralism on the other hand. As a result of this irreducible element, pluralism may be understood as enhancing the role of morality in law. Robert Alexy’s theory of legal argumentation will be taken as a departure point to assess the rationality of the ‘re-entry’ and effectiveness of extrinsic (‘non-legal’) discourses in the legal order. This is an ongoing and reciprocal process of permeability in legal spaces which is perhaps most evident in the relations between national law and law beyond the state. In this paper, I will answer the title question in the affirmative, submitting that there is a degree of implication between certain versions of both. It is structured as follows:

(Part One): The effectiveness of practical moral principles in law (its ‘claim to correctness’, which is required by the nature of law to avoid performative contradictions) is positively ratified by a sort of structural coupling posed as a consequence of the Second World War: national and international safeguards on the base of human dignity and human rights. This amounts to a constructivist frame, and, in first instance, to an overlapping consensus of a plurality of ethical-political conceptions.

(Part Two): The operationalization of this paradigm has been a plural process: the reconstruction of nation-states through constitutionalism, the enlargement of liberal democracies, and the development of contemporary international, supranational and transnational law. In law, this is translated as a material claim for its formal opening toward different normative orders. In other words, contemporary pluralism can be understood as an upshot of this model. Legal pluralism thus rests heavily upon a connection with pluralisms of interests in the ethical-political and axiological senses, displaying structural similarities.

(Part Three): The normative sense of legal pluralism is assessed affirmatively from argumentation theory, although espousing a ‘non-radical’ version of pluralism. It is important to keep in mind that validity and certainty in law are at odds with the indeterminacy fostered by adjudicating normatively porous law. In this sense, pluralism precludes the dworkinian ‘one right answer’ thesis. However, there are reasons to conclude that positivist conceptions of law fall short of the normative claims posed for law after the Second World War.

Argumentation theory is found to have an upper hand insofar as it conceives of rationality as discursive and thus, not always yielding just one right answer.

Keywords: Legal Pluralism, Legal Argumentation Theory, Principles Theory, Global Constitutionalism, Global Legal Pluralism

Suggested Citation

Encinas Duarte, Gabriel Alejandro, Is Argumentation Theory Applicable for Legal Pluralism? (2019). André Ferreira Leite de Paula, Andrés Santacoloma Santacoloma (eds.), Law and Morals, ARSP 158/2019. Available at SSRN: https://ssrn.com/abstract=3543186

Gabriel Alejandro Encinas Duarte (Contact Author)

Scuola Superiore Sant'Anna di Pisa ( email )

Biblioteca Scuola Superiore Sant'Anna
Piazza Martiri della Liberta, n. 33
Pisa, 56127
Italy

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