The Necessity of Institutional Pluralism

Oxford Journal of Legal Studies

24 Pages Posted: 27 Jan 2023 Last revised: 28 Jun 2023

See all articles by Avihay Dorfman

Avihay Dorfman

Tel Aviv University - Buchmann Faculty of Law

Alon Harel

Hebrew University of Jerusalem - Faculty of Law

Date Written: June 27, 2023

Abstract

This Essay defends the claim that the institutional source of a legal norm—be it the constitution, legislation, and so on—affects its nature and value. We argue that institutions are not merely vessels through which norms get public recognition. When different institutions use identically-worded norms, say, ‘everyone is equally entitled to X,’ they may nevertheless produce different norms and provide different goods. For instance, a constitutional protection of a basic right differs from a statutory right to the same right not (only) because the former is less likely to be changed but because a constitutional decision marks the right in question as one that makes no essential reference to the actual choice of the majority of the political community. We extend this argument to other institutional settings, especially the common law tradition of judge-made law.

Keywords: rights, institutions, common law, constitutional rights, democracy

Suggested Citation

Dorfman, Avihay and Harel, Alon, The Necessity of Institutional Pluralism (June 27, 2023). Oxford Journal of Legal Studies, Available at SSRN: https://ssrn.com/abstract=4337145 or http://dx.doi.org/10.2139/ssrn.4337145

Avihay Dorfman (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv, 69978
Israel

Alon Harel

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel
97 22 588 2582 (Phone)
97 22 582 3042 (Fax)

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