Law as a source of pluralism?

Plurality and pluralism

At first glance it appears implausible to understand law as a source of pluralism. Is not law an institution which embodies generally binding norms, rights and obligations and hence aims at creating uniformity of social conduct? Does this not mean that law in fact restricts the range of possible choices of individuals and hence operates as an antipode of pluralism? Yet it is also true that law has an enabling function. Legal institutions such as property, contract, testament, foundation, rights, or courts create a social world in which the merely physical forces of men and women are infinitely enlarged. In other words, they create freedom. But do they also create pluralism? Obviously we must distinguish between pluralism and plurality, a term that I use synonymously with diversity or variety. We speak of the plurality of ideas, principles, worldviews, cultures, moralities, languages, etc., when we observe the differentiation of reason into a multiplicity of manifestations each of which claims to be true and authoritative. The plurality or diversity of ideas is an empirical fact which can be observed from outside.

Pluralism, in contrast, deals with the internal view on ideas, i.e. their claim to be true. Ideas are creations of human beings which provide knowledge of basic moral and epistemic distinctions such as good and evil, just and unjust, or right and wrong. Obviously none of these alternatives can impart multiple answers. Both moral and epistemic questions are either-or questions, i.e. questions of truth, whereby truth is either based on knowledge or on a belief. An idea or a belief which claims truth cannot accept the possibilities of several truths with respect to the content of that idea or belief. If a person believes in the monotheistic idea that the world is created and governed by one omniscient and omnipotent God, then only his commands can be right. Since God’s commands make use of opacity, it is common that competing claims to truth emerge. Monotheistic religions especially have great difficulties in accepting the coexistence of several truths, because one God can embody only one truth. Hence in the view of his devoted believers the coexistence of different truths is metaphysically and logically irregular, it is actually the coexistence of truth and error, or, even worse, the coexistence of truth and dishonesty. This cannot be accepted because it is a severe sin towards God. But if you assume the position of an observer who has the experience and who understands that ‘there exist significant differences of opinion among individuals who seem to be equally knowledgeable and sincere’ and that this pertains to religious issues in particular ¹ you would be prepared to accept the possibility of religious diversity.

Similarly, in the field of epistemology the participants in its discourses aspire to find out the truth with respect to the objects of their research. The notion of knowledge is based upon the distinction between truth and falsehood, and ideally a proposition about a question of knowledge is either true or false. ² Nor does it seem to be conceivable that there may exist several truths with respect to a particular issue. ³ The fact that competing truth claims compete for recognition could remain a merely academic issue were it not for the tendency at least of western societies to build the legitimation of their social order upon the claim to a universally valid religious, moral, or scientific truth. Very often truth claims have a societal dimension. Moreover, at least disputes about truth which seize the masses are ultimately disputes about the just distribution of rights, obligations, burdens and benefits within social relations. This does not mean that these struggles mask only the underlying ‘real’, ‘genuine’, or ‘true’ socio-economic conflict as doctrinal Marxism would claim. They are conflicts about collective identities and hence, as Hirschman put it, ‘conflicts of the either-or, nondivisible category that are characteristic of societies split along rival ethnic, linguistic, or religious lines’. ⁴ They tend to be inaccessible to compromise and to end by victory or defeat, or spatial separation.

The concept of pluralism is a response to the societal dimension of competing truth claims. It does not claim to provide compromises between those competing claims. It is both a theory and a mindset which suggests a second-order level of perspective in that it leaves the disputed question of truth undecided and aims at finding a societal pattern of peaceful coexistence among the proponents of conflicting truth claims. The idea of pluralism requires the recognition of the plurality of ideas, opinions, religious beliefs, or lifestyles as reflecting different and particular perspectives each of which embodies a subjective truth. To be sure, pluralists are not agnostic to the question of whether a proposition is true or false. This question remains crucial for them. But exactly because this is so, pluralists separate the socially divisive implications of truth claims from their philosophical and theological foundations and restrict the latter to the field of intellectual dispute. Since there is no independent authority to make a judgment about the truth of any of the conflicting truth claims none of them can be made the collectively binding fundament of the social and political order qua truth claim. But how can one separate the social from the epistemic dimension of truth claims? From the societal point of view pluralism requires the recognition of the inherent subjectivity of the truth character of competing religious, moral, or analytical propositions. It postulates the coexistence of different, even mutually exclusive ideas, worldviews, social ideals and political aspirations within one polity, irrespective of their value. Obviously this is a requirement which demands too much of most individuals who sense that their truth is being relativized. Thus pluralism requires a relief of that strain, provided by a plurality-engendering institutional design, a political culture of recognition of diversity and otherness and a general attitude of tolerance for heterogeneity. Before explicating the crucial role of law for solving this problem, I will briefly discuss some historical aspects of the relationship of law and pluralism.

Three sources of obligations: Religion, morality, law

In the history of the moral development of humanity pluralism is a late achievement. This has to do with the human need for security, social stability and predictability which suggests a safe and unequivocal basis of obligations. Truth is the ideal basis: it is an undisputable fundament of normative and cognitive certainty. Hence religion has long been the only source of truth and of its beneficial implication for social stability. It was closely associated with morality, ‘the most important code of conduct put forward by a society and accepted by the members of that society’ ⁵ which protects the commonly shared values and principles about good and evil as ingrained in the customs and practices of the society’s daily life. Law as the third source of obligations is a spin-off of morality which developed in the historical development of human societies towards higher degrees of social differentiation and statehood. ⁶ What distinguishes law from religion and morality is its mode of enforcement. Law is inherently connected with litigation and procedures of adjudication. In archaic societies the conflict between two individuals (or groups) about their claims was solved by – largely violent – self-help. Religious or magic beliefs in the justification of the respective claims prevailed, hence their self-execution was the fulfilment of justice. The gradual reduction of self-help and the institution of a judge or a jury changed the character of the disputed claim in that it involved the community in the fight. An erudite author characterized the purpose of the ongoing substitution of judicial litigation for self-help in the archaic Greek society as follows:

Judicial procedure had not yet developed to a point where the lawsuit serves the interest of the parties, especially the plaintiff, in obtaining a judgment which puts an end to their controversy and is enforceable. Its sole purpose was the protection of the internal order of the community by establishing a certain amount of public control over the use of self-help, which was still the only existing means of realizing a claim. ⁷

Thus, in its embryonic stage the feature of law in the early European civilization consisted in the transformation of a feud between individuals or groups into a conflict which involved the whole community. The fact that claims had to be justified – originally to the king, later to a group of elders – altered profoundly the character of disputes. This assumption suggests itself in view of the reports that these disputes were performed in a surrounding crowd which performed the role of a jury and even made the final decision. ⁸ This is tantamount to the emergence of a public arena in which different actors engage in a dispute not only over controversial facts, but also over the correct interpretation of normative rules. Obviously this latter practice would not have been possible with respect to the sacred precepts of religion or to the commonly shared principles of morality. Only rules of law could be disputed, or, perhaps more precisely: normative claims that could be disputed constituted a new kind of normativity, namely law. This was an important step towards the ideal of the ‘community of citizens…in which speech takes the place of blood and acts of decision take the place of vengeance’. ⁹ It provides an unprecedented pattern of how to deal discursively with disagreement over truth and justice. We can regard this archaic kind of justice as the origin of the still embryonic idea of pluralism – the model of debating about competing claims to truth.

The rhetorical element of normative disputes is certainly one source of the plurality-engendering character of law. There is another characteristic which has surfaced in the developmental process of modern society and the emergence of the modern state. It has proved more momentous than the rhetorical constituent of law and is the result of a dialectical twist of history, namely the separation of law and justice. The story begins with the gradual transformation of the late medieval European world of estates, orders, kingdoms, cities and petty nobilities into a plurality of sovereign territorial entities – states – as embodied in the absolutist rule of monarchs and princes. ¹⁰ They established a kind of political regime which Jean Bodin, the most influential French jurist of the 16^th century, had conceptualized in his seminal Six Books of the Commonwealth, first published in 1576. In the First Book he developed a new concept of sovereignty which, he stated, ‘consists of giving the law to subjects in general without their consent’. ¹¹ This definition established a concept of law which was no longer the expression of the commonly shared ideas about justice and injustice but the unilaterally imposed will of the sovereign on the society. It was, in other words, an institutional device to generate unconditional obedience of subjects, irrespective of their sense of the law’s justice. While Bodin’s concept was forged as a juridical weapon of the French monarchy against the unruly estates and their claims for privileges which limited the monarch’s exercise of authority, two generations later Thomas Hobbes gave a philosophical explanation of this fundamental break of the concept of law with the medieval past. Against the background of the civil wars in his country and on the European continent he regarded as a ‘disease of the commonwealth…the poison of seditious doctrines, whereof one is that every private man is judge of good and evil actions’. ¹² Thus he deemed it ‘manifest that the measure of good and evil actions is the civil law, and the judge the legislator’; ¹³ it was equally manifest that the binding force of the law does not follow from its truth or claim to truth, but exclusively from the authority of the sovereign. ‘[T]hough it [sc. the civil law] be naturally reasonable; yet it is by the Sovereign Power that it is Law’, ¹⁴ or succinctly and most famously the Latin version: ‘auctoritas, non veritas facit legem’. In essence this means that the law is a command of the sovereign ¹⁵ which binds his subjects due to its non-communicative, impersonal and unconditional claim to obedience, not due to any appeal to justice, reason, or truth. This principle did not only mean that the law is binding irrespective of its reasonableness and justice, but that the question of the reasonableness of the sovereign’s commands was excluded from the public sphere altogether. This was to become the nascent absolutist state’s solution to the above question of how to separate questions of truth from their socially divisive implications. Thus, according to Hobbes, individuals should not be allowed to worship publicly because that could ignite sectarian quarrel. The public sphere is totally occupied by the law of the sovereign. Worship is only ‘in secret free’. ¹⁶

The Hobbesian principle of auctoritas, non veritas facit legem substituted authority for truth as the fundament of the social order. Obviously auctoritas meant human authority, because God’s authority was identical with veritas. In other words, fallible, weak, error-prone and sinning individuals were endowed with power over other individuals – how could that be justified? For Hobbes’ contemporaries this was a scandalous claim; it followed from Hobbes’ basic assumption that the individuals were responsible for their physical and spiritual well-being. This claim reflected the erosion of the medieval feudal society and the emergence of the first vestiges of the age of ‘possessive individualism’. ¹⁷ Thus Hobbes defined the first natural right of the individual as his and her right to self-preservation, ¹⁸ and the polity which he devised as the best response to the miseries of the religious wars was created by a contract among atomized individuals in which they exchanged obedience for protection. ¹⁹ The subjects’ government rested upon their own will, not on divine providence.

Although Hobbes’ Leviathan did not stipulate the subjects’ right to depose the sovereign on the ground that they disapproved his laws, the very idea of the social contract as such opened the path towards the idea that the rulers needed the legitimation of the ruled. This switch from truth to authority as the idée directrice of the modern polity became the initial spark of a long and protracted course towards pluralism. In the transitional period of absolutism the emerging territorial state, in the spirit of Hobbes, claimed the unity of physical and spiritual sovereignty, laid down quintessentially in the principle ‘cuius regio, eius religio’ (whose realm, his religion) of the Augsburg Treaty of 1555 and confirmed in the Peace Treaties of Westphalia of 1648. It was mitigated by the sovereign princes’ choice to tolerate domestic worship. Hence, under absolutist regimes religious dissent and generally spiritual and intellectual plurality could, if at all, exist only in the private sphere. True, even under absolutist rule some embryonic forms of a public sphere existed due to the spread of letterpress printing which stimulated the publication not only of books, pamphlets, leaflets and circulars of many kinds; ²⁰ but the range of the freedom to discuss, let alone challenge the justice of laws was defined by the will of the absolutist ruler. He could grant this freedom, deny it, or retract a formerly permitted freedom at will. In fact, nowhere did absolutist regimes grant this freedom. Thus, the search for truth, especially for the right criteria of justice, remained confined in the private sphere. But this did not save the sovereign state from the challenge of its legitimacy.

In his influential book Kritik und Krise the German historian Reinhart Koselleck has analysed in detail how the French absolutist state of the 18^th century was progressively destabilized through the expanding activities of social forces which in a sphere of secrecy developed the critical moral yardstick by which the amoral sphere of sovereign politics was measured and step by step decomposed in the acid bath of morals. ²¹ These forces included clubs and Freemasons’ lodges, the private republic of letters, and the encyclopédistes, i.e. the authors of the encyclopedia, the most important intellectual project of the Enlightenment, embodying the twins of enlightenment and secrecy, as Koselleck put it. ²² They established the historical moral court before which the absolutist state had to answer for its misdeeds, and its judgment was delivered and executed on the same occasion, 14 July 1789. This was the historical moment in which the idea of public reason was taken away from the sovereign monarch and arrogated by the people in the streets of Paris. The question of just rule became a matter of the people, literally a public matter; publicus is populus is its political quality.

Obviously the people, especially the people in the streets, are not one, but a plurality. Politics is a matter of the communication, actions and interactions of the many. ²³ This implies disagreement, divisions, dispute, conflict – in one word, the struggle for the best conception of just rule. Obviously this is not yet pluralism, but merely plurality. Pluralism requires, as expounded, the recognition of the plurality of truth claims and of the need of their coexistence. It requires communicative interaction. It shares the properties of the public sphere which, in the words of Nancy Fraser, can be described as ‘a theater in modern societies in which political participation is enacted through the medium of talk. It is the space in which citizens deliberate about their common affairs, hence, an institutionalized arena of discursive interaction.’ ²⁴ Neither pluralism nor the public sphere is an empirical reality. Note the element ‘institutionalized arena’ in Fraser’s definition; it is essential. Communicative interaction about common affairs cannot exist as a mere empirical occurrence, a social fact, as it were. It depends upon a framework of rights, obligations and responsibilities which belong to what John Searle has called institutional reality. ²⁵ This also applies to pluralism. The force which creates that institutional reality is the law.

The constitution of pluralism through law

To understand this claim, we must distinguish between regulative and constitutive legal norms. Regulative norms refer to an already existing social reality and shape its concrete character by way of mandating, permitting, or prohibiting a defined behavior. For instance, traffic rules about safe and considerate behavior regulate traffic which exists independently of these rules. Conversely, constitutive rules create an as yet non-existent institutional reality which opens the window for new actions according to the sentence ‘X counts as Y’. To pick out two of the numerous examples which John R. Searle, who introduced this distinction into modern social sciences, ²⁶ offers: money and property. ‘Bills issued by the Bureau of Engraving and Printing…count as money…in the United States.’ ²⁷ An empirical fact – the issuance of pieces of paper – acquires a particular social significance in that it is transformed into an institutional fact, that is, the recognition of this fact as constituting money. There is no need to expand on the enormous enlargement of the range of economic activity due to the creation of this institutional reality through a constitutive rule. Or take the transformation of the physical occupation of a piece of land into property through the constitutive rule ‘a piece of land recorded in a special register counts as private property’, thus creating the possibility to use the property as capital. ²⁸ Obviously the constitution – the supreme law of a polity which establishes the institutional structure of its system of government and the basic status of its members as citizens – is the most general and encompassing constitutive rule. Without a constitution – be it a written text, be it, as in a few countries like the UK or Israel, a corpus of single laws – the government of a country would be no more than a factually ruling elite, its citizens no more than mere subjects to the power of that elite.

Constitutive norms convert power into authority. They endow vulnerable human beings with the status of ‘membership in some human community’, ²⁹ such as citizenship and nationality, grant migrants asylum, or bestow on them lesser rights such as residential entitlement or graded rights to work. ³⁰ In most states individuals have at least the legal status of persons who enjoy fundamental, internationally guaranteed human rights. They are not merely physical human beings. ³¹ A legal status of whatever grade does not only grant its beneficiary the protection of the exercise of those rights but, even more importantly, includes the recognition of the right-holder and his or her use of their rights as an inherent element of the socio-political identity of the polity. ³² Thus the fundamental rights to the freedoms of speech, press, religion, assembly, etc., are not merely negative rights directed against the intrusion of the state into the personal sphere of private individuals. Rather, they constitute a realm in which each individual, be it a citizen, be it merely the holder of an international human right, is represented, recognized and protected qua his or her capacity to contribute his or her opinions, ideas, visions and idiosyncrasies about common affairs to all the others. The constitutional stipulation of basic rights to communication implies the assumption that individuals have different, controversial, even antagonistic opinions, ideas, etc. Imagine a constitution which recognizes the – factual or counterfactual – supposition of a full congruence of opinions among the members of the polity. ³³ It would transform this unanimity into an institutional reality which then would define the range of rights, obligations and responsibilities of the individuals – obviously the opposite of the meaning of fundamental rights as guaranteed by modern constitutions.

Thus we can conclude that constitutions which guarantee rights to the freedom of communication establish an institutional reality in which the plurality and diversity of opinions and interests are considered. While regulative norms can order the empirically existing plurality of opinions and interests through commands, prohibitions and permissions, only constitutive norms, most prominently constitutions, transform the existing plurality into a distinct social pattern which has normative quality, namely pluralism.

Concluding remark

The constitutive role of law for the occurrence of pluralism is an achievement of modernity. This has to do with the particular status of power in modern societies. Constitutive rules create power which enables individuals or groups to shape social reality. For instance, the civil codes of most contemporary countries which establish the right of individuals to make dispositions of property upon death create distributional power of a deceased person over the future generation. This is a very special kind of power. Consider, for instance, the self-declaration of a military junta as the new ruling body of a country after a putsch. As Searle rightly observed, we ‘do not just accept that somebody has power, but we accept that they have power in virtue of their institutional status’. ³⁴ Compare this with an absolutist monarch who ruled on the basis of his divine right to power – certainly this was power in virtue of its institutional status. But today we do not accept any institutional status as the fundament of secular power, but only one which rests upon the consent of the ruled. Obviously only polities based upon the principle of popular sovereignty and its effective realization can produce constitutive norms and in this way create new possibilities for shaping their social reality. Pluralism is such a creative invention of modern constitutionalism.