Substantive Pluralism in Law
86 Pages Posted: 26 Aug 2022 Last revised: 29 Aug 2022
Date Written: October 22, 2021
Today it has become commonplace to state that democracy is in crisis. Citizens and scholars are beginning to lose their faith in democracy across the political spectrum. They are not alone. Great thinkers of the past mistrusted democracy. They thought it was bound to fail, collapse first into anarchy and then into tyranny. Others thought that principles such as democracy, freedom, equality, and utility are inherently antagonistic; when they conflict, utilitarian thinkers favored utility, libertarians, freedom, egalitarians, equality, and populists, democracy. They identified a hierarchy among principles and chose the one that, in case of conflict, should reign over the others.
In legal theory, Ronald Dworkin advocated for a substantive theory of coherence guided by the principle of integrity. John Rawls acknowledged reasonable pluralism as an existential element of a free and democratic society of equal citizenship. Yet, he formulated a hierarchy between his principles of justice, arguing for the supremacy of liberty over social justice. Finally, H.L.A. Hart acknowledged that formal rules embody substantive principles and policies that interact with one another. Yet, he refused to impose a predetermined hierarchy that would determine the resolution of their potential conflict. Legal decision, he argued, should attain a de facto “reasonable balance” between conflicting interests.
Substantive pluralism in law is a theory about the nature of the rule of law in a free and democratic society. It explores the element that distinguishes a free and democratic society from an authoritarian regime. I propose that foundational principles of our law, such as freedom, democracy, equality, and utility, coexist in our formal law and legal system. They interact with one another dynamically and may align, complement, or conflict with each other. Substantive pluralism in law is a theory that intends to support and protect their coexistence, independence, and harmonious interaction in the years to come.
Keywords: Justice, substantive pluralism, democracy, the rule of law, law, politics, legal theory, legal philosophy, jurisprudence, formalism, idealism, formal justice, substantive justice, John Rawls, Ronald Dworkin, H.L.A. Hart, morality, legal realism, critical legal studies, adjudication
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