Does Legal Theory Have a Pluralism Problem?

Legal theory has been criticized by legal pluralists on the grounds that it has a “pluralism problem.” In a nutshell, legal theory’s pluralism problem stems from the fact that it explicitly or implicitly assumes the model of state law whenever it refers to law. This is problematic both because such a state-based conception of law fails to capture myriad nonstate forms of law existing in different contexts and because it runs the risk of supporting oppression in postcolonial contexts where indigenous laws are pushed out by colonial laws which conform to the (state-based) legal theoretical paradigm. This chapter focuses on the former, analytical, limb of legal theory’s pluralism problem by breaking the problem down into three specific claims; two which pluralists argue legal theory defends: a strong claim—that all law is necessarily state law; an intermediate claim—that state law is a paradigmatic or the “best” form of law; and one made by pluralists about legal theory: a weak claim that legal theory has unwarrantedly neglected nonstate forms of law. It analyzes each claim in turn reviewing the relevant claims in legal theory. It concludes that if legal theory does have a pluralism problem, and the analysis undertaken in this chapter suggests that it might in some respects, it is not a particularly profound one. As such, much of the resources of legal theory can be adopted to capture a wide variety of both extant and new emergent forms of nonstate law.

The Philosophy of Life as the Field of Immanence

The philosophies of life that emphasize life as a plane of immanence, in which there is no outside and no transcendence beyond the world, have expressed a modern non-dualism that is compatible with contemporary developments in neuroscience, social cognition, and evolution. A strong philosophical claim is that the immanence view expresses a truth about life itself, supported by science, against which the history of religions can be measured. A weak claim is that modern articulations of life itself are no more adequate than those of tradition, but the modern view is simply another approximation in expressing the field of immanence. The chapter argues for the weak view.

Disagreement—Commonality—Autonomy: EU Fundamental Rights in the Internal Market

The contribution explores the implications of disagreements about rights in the ‘multi-layered’ European polity for the autonomy of EU fundamental rights law. It argues that insomuch as the EU’s weak claim to supra-national political authority is corroborated by a strong case for economic integration, the internal market operates not simply as a constraining factor in the effective realisation of fundamental rights, but provides the very foundation of their autonomous interpretation in the EU legal order. Sections II and III elaborate upon the relationship between conflicts of authority in the European legal space and the autonomous interpretation of EU fundamental rights law under conditions of political disagreement. Section IV links the argument to the often-alleged instrumentalisation of EU fundamental rights in the service of the market. Sections V and VI substantiate the guiding contention of the contribution—that the autonomy of EU fundamental rights law is rooted in the unity of the market—with an analysis of pertinent case law. The concluding section suggests that the transformation of the EU into a ‘genuine’ human rights polity must proceed through a politicisation of the market by virtue of fundamental rights law.

Disagreement—Commonality—Autonomy: EU Fundamental Rights in the Internal Market

The contribution explores the implications of disagreements about rights in the ‘multi-layered’ European polity for the autonomy of EU fundamental rights law. It argues that insomuch as the EU’s weak claim to supra-national political authority is corroborated by a strong case for economic integration, the internal market operates not simply as a constraining factor in the effective realisation of fundamental rights, but provides the very foundation of their autonomous interpretation in the EU legal order. Sections II and III elaborate upon the relationship between conflicts of authority in the European legal space and the autonomous interpretation of EU fundamental rights law under conditions of political disagreement. Section IV links the argument to the often-alleged instrumentalisation of EU fundamental rights in the service of the market. Sections V and VI substantiate the guiding contention of the contribution—that the autonomy of EU fundamental rights law is rooted in the unity of the market—with an analysis of pertinent case law. The concluding section suggests that the transformation of the EU into a ‘genuine’ human rights polity must proceed through a politicisation of the market by virtue of fundamental rights law.

The Argument From Design: Some Better Reasons for Agreeing with Hume

I. The argument from design or ‘teleological argument’ purports to be an inductive proof for the existence of God, proceeding from the evidence of the order exhibited by natural phenomena to the probable conclusion of a rational agent responsible for producing that order. The argument was severely criticized by David Hume in his Dialogues Concerning Natural Religion, and it was widely conceded that Hume's objections had cast serious doubt on the adequacy of the teleological argument, if not destroyed its credibility entirely. However, there has been a recent reappraisal of this claim by R. G. Swinburne, who maintains that none of Hume's criticisms have any validity against a ‘carefully articulated version of the argument’. Using an analogical argument based on temporal regularities rather than on spatial regularities (or arrangement of parts), Swinburne claims to have shown that the teleological argument is a legitimate inference to the best explanation whose force depends only on the strength of the analogy and on the degree to which the resulting theory makes explanation of empirical matters simpler and more coherent. Moreover, he claims to have shown that the argument provides support for the Christian monotheistic hypothesis and not merely for the weak claim that the universe was designed (somehow). This is an important claim since it has long been thought that Hume's most devastating blow was dealt when he showed that the teleological argument (if it is admitted to have any force at all) provides just as much support for the negation of certain propositions considered essential to Christian monotheism as it does for their affirmation.