The Necessity of Institutional Pluralism

Avihay Dorfman, Alon Harel

Research output: Contribution to journalArticlepeer-review

1 Scopus citations

Abstract

This article defends the claim that the institutional source of a legal norm - be it the constitution, legislation or whatever - 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 (also) 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.

Original languageAmerican English
Pages (from-to)753-776
Number of pages24
JournalOxford Journal of Legal Studies
Volume43
Issue number4
DOIs
StatePublished - 2023

Bibliographical note

Publisher Copyright:
© 2023 The Author(s).

Keywords

  • common law rights
  • constitutional rights
  • democracy
  • separation of powers
  • statutory rights

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