The Institutionalization of Inconsistency: From Fluid Concepts to Random Walk
PARADOXES AND INCONSISTENCIES IN LAW, O. Perez and G. Teubner, eds., Oxford: Hart Publishing, 2005/6
31 Pages Posted: 20 Jul 2005
Law plays a critical role in the management of modern societies. The leading status of the law depends, I argue, on its being perceived as a fair arbiter. In pluralistic societies this deep societal expectation presents the law with an irresolvable dilemma, reflecting competing conceptions of fairness. First, the law is expected to be consistent. Consistency requires avoiding incongruity or contradiction between legal rules, legal concepts, and legal practices. Underlying this requirement is the intuitive perception that incoherent law-making can be a source of real injustice. Denying or frustrating this expectation is seen as unjust. In pluralistic societies fairness takes on, however, an additional meaning; for the law to be conceived as fair it is expected also to develop "pluralistic sensitivities."
This expectation reflects the social complexity of pluralistic societies. Pluralistic societies are torn by deep disagreements over questions of politics and morality; they are overburdened by conflicting definitions of the good or virtuous life (or society). The concept of pluralistic sensitivity requires the law to respect the cultural idiosyncrasies of the different communities and discourses comprising the society in which it operates. These two visions of fairness are, I will argue, incongruent. They are incongruent because the law does not have at its disposal some meta-principle, which can be invoked to resolve any possible social dilemma while satisfying the requirements of both coherence and pluralistic sensitivity. Particularistic sensitivity may thus, at least in some cases, require the law to follow an inconsistent path. The law is faced then with a deep paradoxical challenge: for it to be considered a "fair" arbiter it must be simultaneously consistent and inconsistent. This challenge involves self-contradiction, because it is driven by internal and conflicting prescriptions. How can the law sustain these conflicting demands or expectations without risking its status as fair arbiter? The law, I argue, has institutionalized the paradox, incorporating it into "normal" legal practice. This institutionalization was attained through the invocation of "fluid" or "vague" concepts and doctrines, such as equality, reasonableness, and the principles governing the practice of constitutional balancing. The use of vague concepts has offered the law a way to keep the paradox at bay, signalling that it can maintain its coherence despite the intense pluralism of its environment.
The paper explores the institutional mechanisms which were utilized by the law to manage the paradox of coherence. The paper begins with an exploration of the structure and systemic role of legal vagueness. It decodes the way in which vagueness is used to handle the paradox, and explores the limits of this strategy as a mechanism for deparadoxification (using the precautionary principle as a case study). I argue that, while vagueness provides certain stability to the legal system, it may fall apart in times of pluralistic stress. The paper sketches two scenarios in which this process could unfold. The apparent fragility of vagueness as a strategy for handling the paradox justifies looking into alternative strategies. The paper proceeds to explore such an alternative strategy: "randomization." Randomness seems to offer a potential resolution to the paradox - a decision-making mechanism that enables the law to satisfy the requirements of both coherence and pluralistic sensitivity. However, a closer inspection reveals that randomization is a precarious strategy, whose capacity to resolve the paradox of coherence is highly restricted. Ultimately, I argue, there is no escape from the paradox of fairness, as neither vagueness nor randomization provides a definite resolution for the dilemma underlying it. It seems that we have no choice but to deal directly with the bare paradoxicality of modern law. The final section of the paper explores the consequences of this conclusion.
Keywords: Paradox, inconsistency, vagueness, randomness, fluid concepts
JEL Classification: K10
Suggested Citation: Suggested Citation
By Oren Perez