Altera Pars Audiatur: Law in the Collision of Discourses

LAW, SOCIETY AND ECONOMY, Richard Rawlings, ed., Oxford University Press, pp. 149-176, 1997

28 Pages Posted: 24 Apr 2006 Last revised: 8 Sep 2009

See all articles by Gunther Teubner

Gunther Teubner

Johann Wolfgang Goethe Universität

Date Written: 1997

Abstract

We are faced with legal pluralism in a more radical sense than how the term is used in current legal sociology. It does not just refer to a plurality of local laws, of ethnic and religious rule-systems or of institutions and organisations. Rather, it refers to a plurality of incompatible rationalities, all with a claim to universality within a modern legal system. Different social particularistic rationalities have formed bridgeheads within the law from which they operate in the designing of incompatible legal concepts, to represent alternative doctrinal arguments and methods, and to project norms which contradict each other. Given this situation, there may be a temptation in the law's empire to give in and to hand over the unity of law to one of those bridgeheads. Such colonialist claims come today from an economic theory of law, a political theory of law, and from a moral theory of law. Their fatal attraction is that they can provide, within one approach, a framework of legal theory, doctrinal arguments and methodological instruments. However, the question still remains: how can the law decide between them, if each one of them is legitimately institutionalised in social practice and if each one of them can demonstrate a universal rationality? Has such a plurality of legal "ontologies", juridical concepts, and legal models to be avoided, or can it be turned around constructively? The issue is of accepting the permanent conflict between ontologies within the legal system as such and without the possibility of ever deciding it. The idea is to maintain conflict or even to increase conflict, not to reduce it. Is there not a case for finding ways and means to increase the plurality by "civilising" the conflict of discourses and to use its rich tapestry of conflicts productively?

Keywords: legal theory, system theory

JEL Classification: K10, K40

Suggested Citation

Teubner, Gunther, Altera Pars Audiatur: Law in the Collision of Discourses (1997). LAW, SOCIETY AND ECONOMY, Richard Rawlings, ed., Oxford University Press, pp. 149-176, 1997. Available at SSRN: https://ssrn.com/abstract=896477

Gunther Teubner (Contact Author)

Johann Wolfgang Goethe Universität ( email )

Grüneburgplatz 1
Frankfurt am Main, D-60323
Germany
0049 69 71034781 (Phone)
0049 69 798-34405 (Fax)

HOME PAGE: http://www.jura.uni-frankfurt.de/ifawz1/teubner/

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