The Necessity of Institutional Pluralism

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