Legal and Moral Pluralism: A Rejoinder (in European Human Rights Law)

Abstract

Sociologically and normatively, the concept of legal pluralism presupposes a ‘legal system’ or a ‘law-like’ normative order displaying a distinctive structure (eg an institutionalised system of rules and sanctions) whose boundaries can be determined and distinguished from others (or from non-law). Legal pluralism thereby presupposes that the boundaries between those entities are cognisable (descriptively or normatively) and distinguish large-scale entities (‘system’, ‘order’, ‘layer’, etc). In this article, I argue that this overlapping concept of legal pluralism is inapplicable to human rights law either descriptively or normatively (with particular emphasis on the European Convention on Human Rights (ECHR). Normatively, recent philosophical literature suggests that human rights (law) may be endorsed by a variety of moralities (eg collectivistic) that make it safe from the critique of parochialism, legal or moral. Descriptively, European human rights law has never been legally depicted as an autonomous and complete legal order in the vein of EU law as held by the European Court of Justice in Van Gend en Loos. This is explained by the structural principle of subsidiarity shaping the complementing roles of the European Court of Human Rights (ECtHR) in reviewing state practices and national courts in applying the ECHR. How shall we then understand the point (if any) of legal pluralism in the context of European human rights law? I argue that one first needs to uncover the link between legal and moral pluralism and therefore ‘pierce’ the large-scale boundaries premised in the conventional concept of legal pluralism. I show how pluralism is used in the reasoning of the ECtHR to justify its authority over national courts, so that the distinction between legal ‘orders’ or ‘systems’ is contingent upon the normative role that moral pluralism plays in justifying the duties correlative to human rights.