The Structure of Pluralism

The Structure of Pluralism On the Authority of Associations Víctor M Muñiz-Fraticelli Great Clarendon Street, Oxford, ox2 6dp, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © V Muñiz-Fraticelli 2014 The moral rights of the author have been asserted First Edition published in 2014 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2013953297 ISBN 978–0–19–967388–9 Printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work. Contents Introduction 1 PART ONE THE DISTINCTIVENESS OF PLURALISM 1. The Structure of Pluralist Arguments 1.1 1.2 1.3 1.4 1.5 Pluralism as Ideal Meta-ethical Pluralism: The Model of the Argument Political Pluralism: Conlict over Sovereignty Legal Pluralism: Conlicts of Legality Pluralism Across the Domains of Practical Reason 9 11 13 17 25 28 2. The Inadequacy of Multiculturalism 2.1 The Multicultural Paradigm 2.2 What Pluralism is Not About 2.3 Pluralism, Multiculturalism, and Justice 2.4 Political Pluralism and Jurisdictional Competition 31 34 38 41 46 3. The Incompatibility of Subsidiarity 3.1 Before Subsidiarity 3.2 The Principle of Subsidiarity 3.3 A Word on the European Union 56 57 64 73 4. Associative Democracy and the Corporatist Temptation 4.1 Cohen and Rogers on Associative Democracy 4.2 Hirst on Associative Democracy 4.3 Neither Corporatism nor Syndicalism 81 83 86 92 PART TWO THE CONSTITUTIONAL THEORY OF PLURALISM 5. Two Conceptions of Sovereignty The Idea of Sovereignty Early Modern Sovereignty Medieval Sovereignty The Limits of Medieval Constitutionalism 101 101 105 110 113 6. A Positivist Pluralism? 6.1 The Roots of Antipathy Towards Positivism 6.2 The Fallacies of the Critique of Legal Positivism 118 120 125 5.1 5.2 5.3 5.4 xii Contents 7. Law as Intelligibility 7.1 Law as Institutionality 7.2 A Non-essentialist Concept of Law? 7.3 Intelligibility as a Criterion of Legality 7.4 Law before Law 137 139 143 150 153 8. Pluralist Authority 8.1 The Tradition of Political Pluralism 8.2 An Account of Authority 8.3 Reconsidering the Authority of the State 8.4 The Intractability of Conlict 161 162 168 174 175 PART THREE THE PERSONALITY OF ASSOCIATIONS 9. This Unity of Life and Action 9.1 The Birth of the Pluralist Theory of Group Personality 9.2 The Death of Real Personality 9.3 The Contemporary Resurrection of Group Personality 183 183 191 195 10. The Personality of Associations 10.1 The Argument Against Real Personality 10.2 The Importance of Group Personality 10.3 Supervenience and Group Personality 10.4 Two Kinds of Legal Personality 10.5 From Group Agency to Group Personality 199 200 203 207 215 221 11. Property, Personality, and Public Justiication 11.1 Property and Personality 11.2 Hegel on Abstract Right 11.3 Property and Public Justiication 227 228 230 234 CONCLUSION 12. The Spectre of Intractability 243 Bibliography Index 251 263 1 The Structure of Pluralist Arguments This is a book about philosophical, political, and legal arguments, about their form and structure, and about the institutional contexts that give them concrete meaning. It is a book about the intelligibility of certain normative theses and traditions of thought which have repeatedly emerged at diferent times in Western political history, although their sway on the minds and hearts of citizens, theorists, and statesmen have waxed and waned with changing historical circumstance. These theses and traditions are broadly labelled pluralist, because they postulate a plurality of normative phenomena within one or another domain of practical reason. Within each of these domains, pluralist arguments generally conclude that the normative universe is irreducibly complex, and rife with moments in which discerning what is the right decision is not only diicult but tragically impossible, and some kind of irreparable loss is unavoidable. The implications of normative plurality in all domains have been hotly debated—and often rejected—at the conceptual, institutional, and practical level. Detractors have claimed that plurality in the realm of value is but thinly veiled relativism, even nihilism;1 in the realm of politics it is incoherent as an interpretation of sovereignty, dangerous as an invitation to civil strife, and an intractable obstacle to the institution of liberal democracy;2 in the realm of law, even sympathetic writers worry ‘that it is inimical to the rule of law’3 and that it stretches the deinition of legality so far that it ‘thereby lose[s] any distinctive meaning.’4 Leo Strauss, ‘Relativism’ in TL Pangle (ed.), The Rebirth of Classical Political Rationalism (University of Chicago Press, 1989) 13–26; Jefrey Friedman, ‘Pluralism or Relativism?’ (1997) 11(4) Critical Review 469, 469–80. 1 Jean Bodin, On Sovereignty: Four Chapters from The Six Books of the Commonwealth (irst published 1576, Julian H Franklin (ed. and tr.)) (Cambridge University Press, 1992); Thomas Hobbes, Leviathan (irst published 1651, E Curley (ed.)) (Hackett, 1994) 115–16; Stephen Holmes, Passions and Constraint (University of Chicago Press, 1995), especially chapters 2 and 3. I have used the Franklin translation of Bodin whenever possible, as it is the most accessible English translation. For passages of the Six Books of the Commonwealth not included in that edition, I cite C Frémont, M-D Couzinet and H Rochais (eds), Les Six Livres de la République (Librairie Arthème Fayard, 1986). 2 3 Gordon R Woodman, ‘Legal Pluralism and the Search for Justice’ (1998) 40(2) J African Law 152, 160. Brian Z Tamanaha, ‘The Folly of the “Social Scientiic” Concept of Legal Pluralism’ (1993) 20(2) Journal of Law and Society 192, 193. Tamanaha’s later ‘non-essentialist’ version of legal pluralism—developed in 4 10 The Structure of Pluralist Arguments Against the sceptics, my objective in this chapter is to lay out a plausible account of the structure of pluralist arguments, particularly as they apply to (at least some) associations. While I begin this account with pluralism in the domain of meta-ethics—what is usually called value pluralism—my interest lies rather at the intersection of the domains of politics and law. My reasons are both historical and conceptual. Historically, the representatives of the British tradition of scholarship now referred to as ‘political pluralism’, of whom I will shortly say more, were most concerned with the claims to autonomy of certain kinds of association—churches, universities, trade unions, cities, and other federal and sub-federal units—who were especially jealous of their independence, which they often traced, directly or through some intervening institution such as the guild, to medieval antecedents. The avowed medievalism of the British pluralists was not nostalgic or antiquarian (or at least not purely so), but demonstrated a serious preoccupation with long-lasting disputes over the constitutive sources of political authority. Conceptually, I ind that despite important diferences in the ways in which these associations institute and exercise authority, they nonetheless share a signiicant level of organizational formality not only with each other but also with the state. They are, in a way, state-like enough to allow for interesting comparisons which are not applicable to less formalized groups such as cultures or classes. The associations which concerned the British pluralists and which concern me here are both political and legal authorities, and are sources of ostensibly autonomous claims of legitimacy which take the form of rules and institutions which are familiar to the state. This also has the advantage of inviting interesting contemporary debates about the nature of law into discussions of power and authority, and vice versa. Because this is a book about the form and structure of arguments, I do not claim to persuade the reader of the correctness or attractiveness of the pluralist position, but only of its coherence and plausibility. I am convinced that some form of political and legal pluralism is true, that it is a natural consequence of our clearest accounts of authority and legality, that it relects ordinary practices of loyalty and commitment better than other conceptions which prioritize membership in the state, and that it both explains the claims of many associations to an integral sphere of autonomy and justiies the political and juridical structures which make this autonomy efective. But the argument that follows is not an exercise in philosophical justiication. It is an articles leading to A General Jurisprudence of Law and Society (Oxford University Press, 2001)—has itself been criticized as being irreparably vague (see Kenneth Einar Himma, ‘Do Philosophy and Sociology Mix? A Non-Essentialist Socio-Legal Positivist Analysis of the Concept of Law’ (2004) 24(4) Oxford Journal of Legal Studies 717). Pluralism as Ideal 11 attempt to clarify an argument and to show its institutional implications so that its merit may be appraised in the best possible light. 1.1 Pluralism as Ideal There is an ideal structure to pluralist arguments advanced in the several domains of practical reason, and this structure not only makes pluralist arguments similar to each other, but also makes them distinct from other kinds of normative arguments made in meta-ethics, politics, and law.5 The structure of pluralist arguments is composed of three theses or claims that are reproduced in each domain. The irst posits that there is a plurality of sources for whatever is central to the domain (the claim of plurality), while the second proposes that these sources are in some way incommensurable (the claim of incommensurability), that is, that they are incapable of being categorically ranked. The third claim or thesis holds that there is always a possibility of conlict between any two elements, even if only in principle, such that no solution may be found that does not involve a genuine loss which is not completely compensated by a gain on the other side (the claim of tragic conlict or tragic loss). For ease of reference, I will call this the parallel structure thesis (PST). I believe that it relects well certain structural features of pluralist arguments, and that it provides much needed analytic clarity to some recent revivals of political pluralism in philosophy and political theory. Identifying this structure has two beneits. First, if pluralist arguments are alike across the domains of practical reason, then it may be possible to apply the insights of pluralism in one sphere to the others; this is what I seek to do in this chapter. Second, this common structure distinguishes pluralist arguments from other ostensibly similar arguments in a variety of spheres, and highlights how pluralist arguments are diferent from arguments about value (or, more properly, about reasons for action), authority, or legality that also refer to plurality, diversity, or conlict.6 This is especially evident in the domain of political theory, where it explains how political pluralism is distinct from multiculturalism and, despite supericial resemblance, is incompatible with arguments for subsidiarity, corporatism, and associative democracy; I leave these distinctions, however, to chapters 2–4. 5 I refer to meta-ethics, politics, and law as ‘domains’ for the lack of a better term. I am not treating them as academic disciplines, but as sites where practical reason is exercised. The choice of these three domains, and not others, is prompted by Joseph Raz’s identiication of them in Practical Reason and Norms (Oxford University Press, 1990) 11. I have in mind an exercise similar to Charles Larmore’s distinction between value pluralism and Rawlsian reasonable disagreement in chapter 7 of Morals of Modernity (Cambridge University Press, 1996). 6 12 The Structure of Pluralist Arguments The truth of the PST is not at all obvious, however, because it runs against important historical and theoretical objections. Historically, there is no such thing as a single pluralist line of thought that runs across all domains of practical reason. Meta-ethical pluralists, political pluralists, and legal pluralists have each made claims about normative elements in their respective domains from independent premises, and having little or no documented contact with each other’s work. The name pluralism here appears to be a coincidence, and an attempt to make something of this coincidence commits a nominalist fallacy. Theoretically, there seem to be many examples of political theorists who have quite comfortably held pluralist views in one domain and monistic views in another (whether monism is deined narrowly as the denial of the claim of plurality, or more broadly as the denial of any of the three pluralist claims). On some readings, Benjamin Constant was a political pluralist but a meta-ethical monist;7 Thomas Hobbes was the opposite on both counts, and indeed was a political monist because of his meta-ethical pluralism.8 Perhaps, one could argue, pluralist arguments have the same structure because pluralism in one domain implies pluralism in another; but there is, in fact, no such implication, although there might be a strong relationship between pluralism in various domains because of more contingent factors. I will not go into those possibilities in this book. It is enough to say that the practical relationship between meta-ethical, political, and legal pluralism is complicated, and that it neither supports nor undermines the purely formal argument advanced here. There is a further problem with the argument that requires clariication. It can be convincingly argued that few, if any, actually existing pluralists categorically sustain all three theses about any of the domains of practical reason mentioned here. And this would be right. To take only one prominent example, Michael Walzer holds in Spheres of Justice that there is a plurality of incommensurable distributive principles that may apply to important social goods. However, for Walzer, there is little likelihood that the interaction of these principles will result in genuine tragic loss, if only because the determination of which principle applies in each distributive ‘sphere’ is efectively posited by the political community; any apparent conlict is the result of a 7 Contrast Benjamin Constant’s ‘Mélanges de Littérature et de Politique’ (at 623) in which he claims to ‘have defended the same principle for forty years, liberty in everything, in religion, in philosophy, in literature, in industry, in politics: and by liberty, I understand the triumph of individuality, whether over that authority which would govern through despotism, as over the masses who claim the right of submitting the minority to the majority’ (translation mine) with his admittedly instrumental defence of hereditary aristocracy and other groups claiming allegiance to something other than the state apparatus in ‘Principes de Politique’ (at 344–48 and 531–37). Benjamin Constant in Marcel Gauchet (ed.), Écrits Politiques (Éditions Gallimard, 1997). 8 Hobbes, note 2, ch XI. I thank Desmond Manderson for reminding me of this. Meta-ethical Pluralism 13 mistake about the true social meaning of the good in question, or at best an invitation to settle that meaning once-and-for-all.9 So are we left with a general account of pluralism that no one holds, emerging from traditions that have no historical or logical connection to each other? What could possibly be the use of such an argument? It strikes me that pluralism operates here as what Max Weber called an ‘ideal type’. Ideal types relect ‘a rational consistency which is rarely found in reality’.10 Moreover, Weber notes that: They enable us to see if, in particular traits or in their total character, the phenomena approximate one of our constructions: to determine the degree of approximation of the historical phenomenon to the theoretically constructed type. To this extent, the construction is merely a technical aid which facilitates a more lucid arrangement and terminology.11 Such a construction is especially useful in the current ‘revival’ (however modest) of normative political pluralism. The original self-identiied pluralists (Maitland, Figgis, Laski, Cole, and Follett) were not especially clear about the presuppositions and logical derivations of their accounts of sovereignty, and their successors have been more interested in the application of pluralist intuitions to questions of policy or to contemporary debates about religious liberty or multiculturalism, than the examination of the idea of pluralism itself. The applied method is important but does not exclude more conceptual work. 1.2 Meta-ethical Pluralism: The Model of the Argument There is no single pluralist tradition. Rather, there are diferent traditions of thought in diferent domains that have laid claim to the label or had it thrust upon them, and there is no historical relationship between them, nor a relationship of implication from one to another. Pluralism in the domain of meta-ethics, or value pluralism, is most commonly associated with the work of Isaiah Berlin. As Berlin deines it, value pluralism is ‘the conception that there are many diferent ends that men may seek and still be fully rational, 9 Michael Walzer, Spheres of Justice (Basic Books, 1983) 28f. 10 Max Weber, ‘Religious Rejections of the World and their Directions’ in HH Gerth and C Wright Mills (eds), From Max Weber: Essays in Sociology (Oxford University Press, 1946) 323. 11 Weber, note 10, 324. The editors’ introduction clariies the concept further: ‘The much discussed “ideal type,” a key term in Weber’s methodological discussion, refers to the construction of certain elements of reality into a logically precise conception.’ The conception must still be a possible object of apprehension and not an incoherent or meaningless argumentative construct (as Lucas Swaine pointed out to me); I beg the reader to assume, for the moment, that this holds for political pluralism, and reconsider at the end of the book whether I have succeeded in presenting a possible ideal type. 14 The Structure of Pluralist Arguments fully men, capable of understanding each other and sympathizing and deriving light from each other.’12 These values—or, more properly, these reasons for action—13 refer to normative facts that are real and objective, i.e. they can be recognized, even by those who do not share them, as ends pursued for their own sake. Pluralism, in denying that there is any single pervasive source of reasons for action in comparison to which all others may be considered, is committed, by deinition, to the idea of incommensurability. If there were such a source, the plurality of ends would collapse into a multiplicity of manifestations of a single dominant value; such a position cannot be called pluralist in the meta-ethical sense Berlin intends. Pluralism, in this sense, is not a theory on the truth or falsity of any particular source of reasons for action, but rather ‘a thesis about the nature of value’ itself; it is a species of realism in that it holds, quite explicitly, that there are distinctly moral facts in the world.14 ‘There is a world of objective values’, Berlin writes.15 However, the objectivity of these values—or sources of reasons for action—does not clearly rest on their being ‘true’ in an absolute, sempiternal, ahistorical sense. Sources of value emerge at some points in history and ground reasons that were unintelligible before, that did not exist. Their validity as reasons for action seems to depend, irst, on whether they are held as ultimate by some persons, and second, on whether they are intelligible to all persons as conceivably ultimate sources of reasons for action. This criterion is ambiguous, and seems to treat with extreme laxity the question of the truth of value (and the corresponding judgment that a person may be wrong to value something), but I have found in Berlin no recourse to further criteria.16 Objective and ultimate values, in the end, may be discernible not by philosophy, but by history and the social sciences.17 Isaiah Berlin, ‘The Pursuit of the Ideal’ in H Hardy and R Hausheer (eds), The Proper Study of Mankind (Farrar, Strauss, Giroux, 1997) 9. 12 13 As I am considering pluralism in the domains of practical reason, it seems to me that ‘reasons for action’ is a better term than ‘value’ as a referent. Where I retain the term value in the discussion it is only to maintain some consistency with Isaiah Berlin’s own usage. But it is clear to me that, even for Berlin, the important question is not what is good in the abstract, but what one is to do in response to this. I thank Arash Abizadeh for suggesting this clariication. 14 This is John Gray’s conclusion in Isaiah Berlin (Princeton University Press, 1996) 62–63. 15 Berlin, ‘The Pursuit of the Ideal’, note 12, 9. 16 Indeed, the last paragraphs of ‘Two Concepts of Liberty’ seem to disavow an appeal to truth—if truth is in any way akin to sempiternal validity—as measure of value objectivity (see Berlin, ‘Two Concepts of Liberty’ in The Proper Study of Mankind, note 12, 242). Berlin, ‘Introduction’ in H Hardy (ed.), Liberty (Oxford University Press, 2002) 45. Gray goes further, arguing that Berlin is committed to internal realism. ‘On this realist view’, he writes, ‘the elements in the world of value, though they are historical creations [. . .] are nevertheless independent subject-matters, in respect of which our beliefs may be true or false.’ See also Gray, note 14, 72. My preference is for a thoroughgoing constructivism about value and reasons for action, but the choice of meta-ethics has no bearing on the point being made here. 17 Meta-ethical Pluralism 15 Berlin’s characterization of meta-ethical pluralism, however, goes beyond merely pointing out the plurality of sources of reasons for action. Berlin also holds a very strong conception of conlict between these reasons: in his view, values are under constant peril of clashing, contradicting each other, and thus presenting the moral agent with hard and possibly tragic choices. The tragedy resides in the sacriice and loss entailed by a choice that inevitably precludes the realization of some other, equally objective, yet incompatible reason. Yet choices must be made nonetheless, and to deny this is to misunderstand the nature of value. In Berlin’s own words: The world that we encounter in ordinary experience is one in which we are faced with choices between ends equally ultimate, and claims equally absolute, the realization of some of which must inevitably involve the sacriice of others. Indeed, it is because this is their situation that men place such immense value upon the freedom to choose; for if they had assurance that in some perfect state, realizable by men on earth, no ends pursued by them would ever be in conlict, the necessity and agony of choice would disappear, and with it the central importance of the freedom to choose.18 Pluralists, then, hold that there are many valuable ideals, pursuits, and aspirations for which human beings yearn. They understand that these ideals are equally real—they are actually experienced, not instigated by illusion or self-deceit—and objective—even those who do not yearn for them can understand that they are worthy of value.19 Furthermore, pluralists claim that a comprehensive ranking among the sources of reasons for action is impossible even in principle, since these sources are radically distinct—they cannot be reduced to each other or understood on each other’s terms—and there is no one source which holds absolute priority over all others. For George Crowder: [T]hese objective goods are also irreducibly multiple because ‘incommensurable’—they cannot be comprehended under the same measure. There is no super-value to which all other goods contribute more or less. Rather, the basic human goods (which may include liberty, equality, justice, loyalty, knowledge, 18 19 Berlin, ‘Two Concepts of Liberty’, note 12, 239. There is a diference between: (1) stating, with the pluralist, that ‘[t]here is a world of objective values’ (Berlin, note 16) which exist and can be recognized by all moral beings, even when they are not shared by all, and that these values are multiple and cannot be ranked in terms of each other; (2) claiming, with the relativist, that the existence of a value is dependent on perspective, emotion, or cultural context, such that value exists only for those who share it. Pluralism, as opposed to relativism, does not deny the objectivity of value across communities and cultures: ‘there are certain things that are good for human beings whatever they happen to believe’ (George Crowder, ‘From Value Pluralism to Liberalism’ (1998) 1(3) Critical Studies in International Sociology & Political Philosophy 2, 3). The pluralist does not deny the objective existence of values, only their susceptibility to be ranked in terms of each other, which is why value pluralism is considered a version of moral realism. 16 The Structure of Pluralist Arguments and so on) are independent sources of value and of ethical argument. This means that there can be no absolute or inal ranking of the basic goods: in some cases liberty, say, will come before equality, in other cases the opposite.20 Reasons for action, therefore, will inevitably conlict, and this conlict is not a sign of their imperfection, but rather proof of each source’s conceptual independence, the fact that none is derivable or reducible to the other. This independence places human beings in the position of making choices, often hard and sometimes tragic, between ideals which cannot be simultaneously realized. A good painting is ‘good’ in a diferent way from a good soldier; they do not each contribute to the overall goodness of the world, or possess a common quality that is manifested diferently in diferent circumstances; rather the painting possesses aesthetic value, and makes the world more ‘artful’ while the soldier possesses military value and contributes to the efectiveness of his unit. We may see moral value in his dedication to his comrades, instrumental value in his steadiness when pulling the trigger, and even aesthetic value in his posture and movement, and all these may contribute to being a ‘good soldier’, but they refer to qualities that can each be had independently of each other, and be assessed very diferently in diferent contexts. Now, the interesting claim that value pluralists make is not that any human practice (or product thereof ) may be diferently valued depending on one’s context or frame of reference. The interesting claim is that there are certain sources of reasons that are ultimate in that they are the object of human aspiration for their own sake, and not the instrument towards a further goal.21 Thus, happiness, beauty, and justice are all objects of human aspiration, but they do not all stem from a common aspiration towards ‘goodness’ unless ‘goodness’ signiies the same thing as ‘value’ or ‘desirability’. Ultimate sources of reasons are ultimate in that they are the object of aspiration in the last instance, not as a means to some further good; the distinction between meta-ethical monism and meta-ethical pluralism is that monists think that there must be one single thing that we all ultimately desire, while pluralists hold that there are many. Even if there is more than one source of X in the world, we may avoid conlict or loss if it is possible to rank the instances of X in an order of preference or priority. Pluralism usually denies this by making a second claim, the claim of incommensurability: the instances of X, be they values, legitimate authorities, or legal systems, cannot be judged by a common measure. In the case of value, the claim of incommensurability denies that there is a common ranking—utility, say—against which all values may stand. A certain number of units of beauty—if there are such things—does not amount to an 20 Crowder, note 19, 3. 21 Berlin, ‘Two Concepts of Liberty’, note 12, 197. Political Pluralism 17 equivalent number of units of justice. A gain in one value may, in some circumstances, be preferred to a gain in another, but this is, on some accounts, a preference that cannot be rationalized; on others, a purely contextual decision that cannot be generalized and indicates nothing about the general or universal relative merits of beauty and justice. In evaluating the structure of pluralist arguments we can be agnostic about whether incommensurability implies incomparability, and whether the choice among incommensurables can be rational. Joseph Raz, Ruth Chang, and others have made signiicant contributions to the debate on what incommensurability entails, and I do not think it necessary to revisit the debate here.22 A relatively weak theory of incommensurability would suice—say, one that denied that any a priori ranking of incommensurables was possible while allowing rational contextualized choice in particular situations.23 Even this modest incommensurability would hold out the possibility that, in some cases, the order or ranking of certain values might be reversed, or that a decision procedure might not in all cases be conclusive about which ought to be preferred. The importance of incommensurability, aside from illuminating the structure of our moral universe, is that it opens the door to genuinely tragic conlict. The simplest understanding of this claim—the claim of tragic loss—is that there is, at least sometimes, no way of resolving the conlict among incommensurable values that does not involve suppressing or giving up on one of those values. In some cases, the decision, and the ensuing loss, may be more dramatic, as when Bernard Williams explains that ‘an agent can justiiably think that whatever he does will be wrong: there are conlicting moral requirements and neither one of them succeeds in overriding or outweighing the other.’24 1.3 Political Pluralism: Conflict Over Sovereignty In political science, political pluralism usually brings to mind the theory, closely tied to the name of Robert Dahl, which describes the democratic process as the product of the interaction of competing interest groups.25 22 Joseph Raz, The Morality of Freedom (Oxford University Press, 1998); Ruth Chang, Incommensurability, Incomparability, and Practical Reason (Harvard University Press, 1998); Charles E Larmore, Patterns of Moral Complexity (Cambridge University Press, 1987). 23 This seems to be Berlin’s view. 24 Bernard Williams, Moral Luck (Cambridge University Press, 1981) 74. Robert A Dahl, Dilemmas of Pluralist Democracy: Autonomy vs. Control (Yale University Press, 1983); Robert A Dahl, Polyarchy: Participation and Opposition (Yale University Press, 1972); Robert A Dahl, Who Governs? Democracy and Power in an American City (Yale University Press, 1961). For the relationship between Dahl and the British pluralist tradition, see Avigail I Eisenberg, Reconstructing Political Pluralism (State University 25 18 The Structure of Pluralist Arguments But there is another sense of political pluralism—that of the so-called British pluralists—which concerns not the strategies of groups within the sovereign democratic state, but the constitution and legitimation of the state itself: the very personality of groups, the deinition of sovereignty, and the justiication and limitation of liberal democracy.26 It is to this tradition of normative political pluralism that I refer below, a tradition championed by a motley group of intellectuals writing at the turn of the twentieth century, and recently enjoying a modest but overdue revival.27 The British pluralists decried what they perceived to be the prevailing, but false conception of sovereignty that dominated modern Western political theory: the idea that the state was the unlimited and unitary source of legitimate authority in any given society, that it was owed allegiance above all other associations, and indeed that those authorities could legitimately exist only as long as the sovereign tolerated them. This conception—which they dubbed monism—inluenced not only monarchists, but also French radical republicans and English parliamentarians into the twentieth century.28 Against monism, the pluralists assert that, in any society, there are multiple sources of legitimate political authority personated in various groups and associations, of which the state is but one; none of these has inherent precedence over the others.29 Groups—e.g. churches, unions, universities—exercise sovereignty in their own right, and it is only this dispersion of authority that secures freedom against the state.30 The pluralists, however, never formed a coherent school; their arguments were sometimes shoddy of New York Press, 1995) 96. Dahl’s work, to be fair, has always had a normative component, made most explicit in recent writings (e.g. Robert A Dahl, Democracy and Its Critics (Yale University Press, 1989)). Still, it is ‘very diferent from the model of a pluralist state envisaged by the British pluralists.’ David Nicholls, The Pluralist State: The Political Ideas of JN Figis and His Contemporaries (2nd edn) (St. Martin’s Press, 1994) xviii-xix. 26 FW Maitland in D Runciman and M Ryan (eds), State, Trust and Corporation (Cambridge University Press, 2003); John N Figgis, Churches in the Modern State (irst published 1913) (Thoemmes Press, 1997); Harold J Laski, Studies in Law and Politics (irst published 1932) (Archon Books, 1969), and Studies in the Problem of Sovereignty (irst published 1917) (Fertig, 1968); Mary Parker Follett, The New State (Longmans, 1918); Ernest Barker, ‘The Discredited State’ (1915) 2 Political Quarterly 101. 27 For the original British pluralists, see note 26. For the recent pluralist revival, see Eisenberg, note 25; WA Galston, Liberal Pluralism (Cambridge University Press, 2002) and The Practice of Liberal Pluralism (Cambridge University Press, 2005); PQ Hirst, Associative Democracy: New Forms of Economic and Social Governance (University of Massachusetts Press, 1994) and From Statism to Pluralism: Democracy, Civil Society and Global Politics (University College London Press, 1997); C Laborde, Pluralist Thought and the State in Britain and France, 1900-25. (Macmillan, 2000); D Nicholls, Three Varieties of Pluralism (Macmillan, 1974) and The Pluralist State: The Political Ideas of JN Figis and His Contemporaries (2nd edn) (St. Martin’s, 1994). 28 See Figgis, note 26, 56 (on French 3rd Republic minister Emile Combes), and Bernard Baylin, The Ideological Origins of the American Revolution (Harvard University Press, 1992) 198–229 (on parliamentary sovereignty). 29 See generally, Paul Q Hirst (ed.), The Pluralist Theory of the State (Routledge, 1993). 30 David Nicholls, note 27. Political Pluralism 19 and imprecise about the meaning of particular concepts, or presented in formats (such as pamphlets or sermons) that did not lend themselves to careful theoretical scrutiny. Their contemporary advocates have not remedied these deiciencies and pluralism remains, for some, an attractive but poorly deined philosophy of government. The pluralist critique of the state enjoyed some prominence until the advent of the Second World War, but was also forcefully criticized by legal and political theorists.31 Much of the criticism was deserved, since the pluralists were often hasty and unclear in their arguments, and incurred their share of contradictions. Cole, for instance, subordinated the authority of associations to a corporatist functionalism: he argued that each association possesses a function which emanates from the satisfaction of common wants and the execution of common purposes, and the coherence of society depends on all associations fulilling their function in a way that is ‘complementary and necessary for social well-being.’32 He therefore dismissed as ‘perversions of function’ much of the conlict, contradiction, and redundancy that are part and parcel of relations between associations and the state. Laski (an important target of Schmitt’s attacks) inveighed not only against state sovereignty, but against authority in general, even the authority of other groups,33 to the point that some scholars have concluded that he was essentially a philosophical anarchist (a judgment with which he sometimes concurred).34 Figgis is the most consistent and coherent of the lot, yet he also is ambiguous about the role of the state in adjudicating disputes between groups and between groups and individuals.35 The pluralist resurgence has not been the dominant tendency in recent political theory; that is, the distinction of the proponents of deliberative democracy, who see the common interests of citizens of a political society as making special claims to their allegiance, and understand non-state associations, at best, as conducive to a richer political life36 and, at worst, as hostile to the liberal-democratic project.37 The prevalent position in political theory makes the claims of legitimacy of the liberal-democratic state continuous with the decidedly anti-pluralist arguments of Jean Bodin and Thomas Hobbes.38 Indeed, ‘between the two philosophically polar approaches to Carl Schmitt, The Concept of the Political (irst published 1932) (University of Chicago Press, 2007); Francis W Coker, ‘The Technique of the Pluralist State’ (1921) 15(2) American Political Science Review 186; see also Paul Q Hirst, ‘Carl Schmitt’s Decisionism’ and Carl Schmitt, ‘Ethic of State and Pluralistic State’ both in Chantal Moufe (ed.), The Challenge of Carl Schmitt (Verso, 1999). 31 32 34 33 GDH Cole in Hirst, note 29, 62. Eisenberg, note 25, 75–83. 35 Harold J Laski in Hirst, note 29, 180. Figgis, note 26, 90. Joshua Cohen and Joel Rogers, ‘Secondary Associations and Democratic Governance’ (1992) 20(4) Policy and Society 393. 36 37 Brian Barry, Culture and Equality (Harvard University Press, 2001). 38 See also Holmes, note 2, especially chapters 3 and 4. 20 The Structure of Pluralist Arguments association and state in the history of English political thought, the radical scepticism of associational life on the part of Thomas Hobbes and the radical scepticism of the state associated with the early 20th century pluralists, there is no real contest in terms of inluence.’39 Yet, the central contentions of pluralists—that (some) associations have a claim to legitimate authority over their members that is not derived from the iat of the state, and that the social and legal institutions of society should relect this plurality of sovereignties—retained interest. The lack of rigour in their arguments was seen to mask important insights about the relations of authority in modern societies. Interest in pluralist writings would, in fact, experience a resurgence in the latter part of the twentieth century, which continues today. The pluralist tradition was again explored in theoretical scholarship,40 and explicitly embraced by some,41 or at least positively referenced by scholars working on the status of groups and their relationship to state authority.42 For the PST to hold, the claims of plurality, incommensurability, and tragic loss must be echoed in the arguments of political and legal pluralism. In the case of political pluralism, there must be (at least the possibility of ) multiple sources of legitimate authority that are equally ultimate, in that one is not authorized by the other and neither is authorized by a putative third. One such pluralism presumably holds in the international state system, characterized by anarchy, in at least a strict sense: there is no legally recognized common authority to which all other state systems are subordinated. The occasional hegemon may attempt to act as such a power in a practical, de facto, manner, but it rarely goes unchallenged in theory or in practice. And even hegemons do not usually make the claim that they are the source of authority in every state, or that (historical origins aside) every other state retains its sovereignty only by the iat of the dominant power.43 The anarchical nature of the international state system gives some evidence for JT Levy, ‘From Liberal Constitutionalism to Pluralism’ in Mark Bevir (ed.), Modern Pluralism: Anglo-American Debates Since 1800 (Cambridge University Press, 2012) 21. 39 David Runciman, Pluralism and the Personality of the State (Cambridge University Press, 1997); Eisenberg, note 25. 40 William A Galston, Liberal Pluralism (Cambridge University Press, 2002) and The Practice of Liberal Pluralism (Cambridge University Press, 2005). Paul Q Hirst, The Pluralist Theory of the State, Associative Democracy: New Forms of Economic and Social Governance (University of Massachusetts Press, 1994), and From Statism to Pluralism: Democracy, Civil Society and Global Politics (University College London Press, 1997). 41 42 See for example Nancy L Rosenblum, Membership and Morals: The Personal Uses of Pluralism in America (Princeton University Press, 1998). Many other scholars made claims similar to the pluralists’ regarding the authority of groups, even if their theoretical grounding was not in that tradition (Richard W Garnett, ‘The Freedom of the Church’ (2007) 4 Journal of Catholic Social Thought 59; Chandran Kukathas, The Liberal Archipelago: A Theory of Diversity and Freedom (Oxford University Press, 2003); L Swaine, The Liberal Conscience (Columbia University Press, 2006)). The Soviet satellite states may have been an exception, insofar as the Soviet Union considered itself the embodiment of a universal proletarian revolution. 43 Political Pluralism 21 some form of political pluralism, one that endorses a claim of plurality. Most political pluralists, however, and especially the British pluralists (Maitland, Figgis, Laski, etc.) did not have the international state system in mind when they argued for multiple sources of sovereignty, but rather the multitude of associations and other formalized groups that exist within a state.44 The historical record shows that many of these groups predate the creation of most modern states, and cannot therefore be creatures of government in the sense of being causally created by government. What the quintessential monist writers—Jean Bodin and Thomas Hobbes—attempt, to varying degrees, is to displace the historical argument with a legal one, to supersede the historical record through the articulation of a concept of sovereignty that necessarily excludes a plurality of incommensurable (or equal) claims to authority. So Bodin considers every private corporate body—from guilds to towns to universities—as constituted by ‘a right of legitimate community under the sovereign power [where] the word legitimate conveys the authority of the sovereign, without whose permission there is no college.’45 He does not mean that these corporate bodies have their historical origin in the sovereign’s will;46 rather, he claims that their legitimacy can only follow from sovereign ratiication. Though he thought they originally evolved prior to the establishment of the state, he believed that, once the state was in being, corporations had to be sanctioned by it.47 The corporate bodies are organized through the voluntary association of their members, who come together to pursue a common interest. Yet it is the interest of the state— which is twofold: fellowship and administration—that motivates sovereign sanction and actually constitutes the group as a self-governing entity.48 44 See note 27. Bodin, Les Six Livres de la République, Livre Troisième, note 2, 178–79. (Preston King, translates droit de communauté legitime as lawful community, which seems to me an unnecessary departure from the original. Preston King, The Ideology of Order: A Comparative Analysis of Jean Bodin and Thomas Hobbes (George, Allen & Unwin, 1974) 98. But it is not the actual group of people that is of interest to Bodin, rather their right to be organized and have their actions recognized by the sovereign authority.) 45 Bodin sketches a history of the origin of corporate bodies in République: ‘And the origin of the corps and colleges was the family, as there were many branches that had shot from the main stem, [and thus] it became necessary to build houses, then hamlets and villages, and to become so neighborly that it seemed all were but one family.’ A familiar account of the state of nature follows: with a growing population, dispute and strife broke out, and this drove villages to raise walls and to appoint princes to defend them. Guilds and colleges may have arisen spontaneously before the state, but they gained legal sanction because they served the sovereign to facilitate the maintenance of order in incipient republics through the organization of trades and professions. Bodin, Les Six Livres de la République, Livre Troisième, note 2, 174–78. See also Jose-Manuel Bernardo Ares, ‘Les corps politiques dans la "République" de Jean Bodin’ in Jean Bodin: Actes de Colloque Interdisciplinaire d’Angers, 24–27 Mai 1984 (Presses de l’Université d’Angers, 1985) 35. 46 47 King, note 45, 96. Bodin, Les Six Livres de la République, Livre Troisième, note 2, 178. ‘Fellowship’ and ‘administration’ are Preston King’s terms, which he equates with Bodin’s ‘la religion’ and ‘la police’, respectively (see note 45, 107). 48 22 The Structure of Pluralist Arguments Hobbes is more dramatic. Contrary to Bodin, he takes no unit of social organization as pre-existent: in the beginning, only individuals exist.49 Hobbes’ theory of corporate structure in fact makes no distinctions between the nature of public or private bodies, families or the state. All of these are but diferent kinds of ‘systems’.50 The sovereign is a system like all others, but the extreme latitude that subjects give to the Leviathan precludes them from undertaking any further act of autonomous association. Once civil government is instituted, all systems, other than the Commonwealth, must be made dependent on the sovereign’s will; otherwise, they would threaten it. The distinction between political and private systems, then, pertains only to the attribution of initiative in their origin, and the interests the group is to serve: both need to be permitted by law, although political systems must also have an express grant, letter or writ authorizing them to act on the sovereign’s behalf. As Preston King succinctly put it, in Leviathan and other writings: Hobbes makes three basic points. The irst is that there are subordinate organisations within the state. The second is that these organisations may pursue some limited common interest restricted to their members, or a broader interest in which the entire society shares. The third is that corporations can only legitimately exist if they are expressly sanctioned or tacitly tolerated by the sovereign power.51 When the British pluralists question the tidy order of the Bodinian and Hobbesian systems, they counter the monist arguments with three claims of their own: the irst is that (at least some of ) the non-state associations that exist in society are not—and ought not be—subordinate to the state; they have, at times, been deemed superior or parallel to the state (as the early Church), they have been carved out of the state by a separate authority (as free cities and universities were), or are in open conlict with the government (as the early trade unions). The pluralists did not assert this as a descriptive claim, but as a moral assertion about the legitimacy of these associations. The second claim is that the interests of these groups are sometimes—but by no means always—‘limited’ in scope or ambition; the saving of the soul, the pursuit of knowledge, or the overturning of labour market are not modest aims, although they might not be shared by other citizens. However, these 49 This represents a paradigmatic shift in the understanding of social organization. ‘For Bodin, the family was the irreducible unit of social organization; for Hobbes, it was merely the smallest (and even then with no absolutely ixed character). For Bodin, individuals were born into families; for Hobbes, they were merely born, being related to other individuals on the basis of force and consent. [. . .] For Bodin, the authority of the state was derived from families, as represented by the father; for Hobbes, it was derived from individuals, as represented by themselves.’ (King, note 45, 184). Hobbes’ deinition of a system is extremely general: it consists of ‘any numbers of men joyned in one Interest, or one Businesse’ (Hobbes, note 2, 155). 50 51 King, note 45, 222. Political Pluralism 23 limits, where they exist, are self-imposed by associations themselves, and their legitimacy or permissibility does not need to be conirmed by the state. The third claim is that the legal reality of associations does not depend on state iat or toleration, but on the same social factors that underlie the very origins of the political community; thus the monist’s leap from the descriptive account of state authority to the normative claim of its supremacy is unwarranted. These three claims it the three elements of the PST quite well. The irst is a claim about incommensurability (through the denial of political subordination). Harold Laski made more explicit the link between the sociological description of associational life and the prescriptive endorsement of plural sources of sovereignty. Flipping John Austin’s canonical formulation52 on its head, Laski argued that, if habitual obedience is the measure of sovereignty, then the state cannot be the only sovereign around. The state is but one of many groups competing for the habitual obedience of men and women, and churches, trade unions, families even, hold the loyalty of individuals to at least the same degree as the state.53 They are, in a real and important way, self-governing, in that they pursue collective goals with unity of purpose, and do not habitually subordinate their values and their ends to those of another authority. The third is a claim of foundational plurality. As Figgis puts it: [C]orporate personality, this unity of life and action, is a thing which grows up naturally and inevitably in bodies of men united for a permanent end, and that it cannot in the long run be denied merely by the process of saying that it is not there. In other words this personality is inherent in the nature of the society as such, and is not a mere name to be granted or denied at the pleasure of the sovereign authority.54 That leaves the second claim, the claim that the interests of groups were sometimes—but by no means always—‘limited’ in scope or ambition, open to interpretation. It is here that the idea of tragic conlict enters the political pluralist paradigm. It raises the possibility that all claims, in this case, of ostensibly legitimate collective authority, might not be simultaneously realized without genuine loss. Of course, the denial of foundational plurality or of incommensurability also rules out the possibility of tragic loss: if non-state authority is judged subordinate to state authority, or if it is stipulated that it does not even exist without the express consent of the state, no 52 John Austin styled the sovereign as a single but determinate individual or body of individuals to whom habitual obedience is rendered by the bulk of society; and who does not, in turn, render such obedience to anyone else, in HLA Hart (ed.), The Province of Jurisprudence Determined (irst published 1832) (Hackett, 1998) 195. 53 Laski, note 26, chapter 1 passim. 54 Figgis, note 26, 64. 24 The Structure of Pluralist Arguments such loss is possible; the superior authority will trump the inferior, or the privilege of legal existence will be withdrawn. But tragic loss may also be denied by organicist or functionalist accounts that all too optimistically presume that properly constituted associations will naturally it into a harmonious social system. For all his ostensible pluralism, GDH Cole’s functionalism takes this direction. He proposes that each association has a ‘function’ which emanated from the satisfaction of common wants and the execution of common purposes. As the function of the state is to represent persons in their common condition—to concern itself ‘with things which concern all sorts and conditions of men, and concern them, broadly speaking, in the same way, that is, in relation to their identity and not to their points of diference’—it cannot claim jurisdictional superiority over other associations, which may be the inal arbiters on matters peculiar to a discrete group.55 But the coherence of society depends on all associations fulilling their function in a way that is ‘complementary and necessary for social well-being’; conlict, contradiction and redundancy are perversions of function.56 Cole’s account of function is at once descriptive and normative, but it ultimately has the efect of denying that conlict between groups, or between groups and the state, can result in one association simply losing out. Redundant or conlictive functions are brushed aside as anti-social, legitimacy is predicated on guild-socialist harmony. A more accurate account of what is at stake when there is a conlict between legitimate authorities derives from the pluralist response to the second Hobbesian point, mentioned earlier. The interests of associations are not always limited in scope or ambition. Figgis, perhaps the truest of the British pluralists, admits as much: Of course such societies may come into collision with the State; so may individuals. Always there is a possibility of civil war. But you will not escape the possibility by ignoring the facts. . . . Harmony must ever be a matter of balance and adjustment, and this at any moment might be upset, owing to the fact that man is a spiritual being and not a mere automaton.57 Even if we put aside the theological terms in which Figgis presents the pluralist position, the ineluctability of latent conlict between the jurisdiction of associations and that of the state parallels the potential conlict between goods or values of the meta-ethical model. One important distinction is that, in Berlinean value pluralism, the boundaries of goods are set and given, and conlict between them arises because of the incompatibility of their simultaneous pursuit. The ends or values of associations are not given; the authority of associations is itself the capacity to set, pursue, and alter its collective 55 GDH Cole in Hirst, note 29, 77 56 GDH Cole in Hirst, note 29, 60–67. 57 Figgis, note 26, 92. Legal Pluralism 25 ends, although in the self-understanding of groups some ends may have a foundational or constitutive place in the group’s justiication for existence. Yet even these are mutable, as they hold pride of place because of the shared understanding of its members, which is itself mutable. It is a formal pluralism of authorities, not a substantive pluralism of authoritative decisions, which characterizes the potential tragedy of political pluralism. The conlict is ultimately meta-jurisdictional, as it concerns not only the capacity of associations (among them the state) to act within a certain given sphere, but also to deine the boundaries of that sphere.58 The political pluralist position, thus stated, does not imply that all associations are always right in pressing simultaneous claims of sovereignty; there may, in some cases, be good reasons for disregarding some sovereign claims or refusing compromise with an especially intransigent authority. But the fact that, from an Archimedean position, a sovereign authority is deplorable does not mean that it is not meta-jurisdictionally authoritative. States routinely make claims that are incompatible precisely because they both lay claim to a normative space simultaneously, without conceding primacy to the other. In such a case they can negotiate or one or the other may lose, but there is no way of airming a solution that concedes the supremacy of both. Churches who claim exemption from certain procedural exigencies of state law, or scholars or universities who resist having their curricula set by the legislature may be made to yield to the demands of the state jurisdiction through penal or inancial pressure. Sometimes good may come of their capitulation to the state, but that is beside the point. The point is that their capitulation is not a clariication of where the rightful authority lies. It is a defeat, one that cannot be squared with the sovereign claims of both competing parties. The language of defeat is tinged with tragedy in the instant case, even if in the long run the losers come to accept the loss. That is all that the PST requires. 1.4 Legal Pluralism: Conflicts of Legality In legal theory, pluralist arguments centre on the multiplicity of legal authorities, and the tendency of state courts to stile competing juridical claims.59 This development parallels the tradition of political pluralism and casts an 58 The term is used by Allen Buchanan to distinguish between ‘(1) jurisdictional authority (the right to make, adjudicate, and enforce legal rules within a domain), (2) meta-jurisdictional authority (the right to create or alter jurisdictions, including geographical jurisdictions), and (3) the property rights of individuals and groups within jurisdictions.’ Allen Buchanan, ‘The Making and Unmaking of Boundaries: What Liberalism Has to Say’ in Allen Buchanan and Margaret Moore (eds), States, Nations, and Borders: The Ethics of Making Boundaries (Cambridge University Press, 2003) 231, 233. 59 Robert Cover, ‘Nomos and Narrative’ (1983) 97 Harvard Law Review 4. 26 The Structure of Pluralist Arguments important light on the pluralist claims about the authority of associations, since many of the groups that are the object of political pluralist theories are themselves governed by sophisticated systems of norms, which suggests that political pluralism and legal pluralism may collapse into each other (but more on this later). Legal pluralism also endorses the claim of plurality in a fairly straightforward way. In nearly every social setting there are always a number of legal orders which bear down on individuals and groups. These may follow a hierarchical order of similar types of law—international, national, regional, and local—or may overlap without, in all cases, trumping each other—such as provincial and national legal orders in ‘strong’ federations. Many other, more unfamiliar but not uncommon, arrangements exist, since ‘in many societies there are more exotic forms of law, like customary law, indigenous law, religious law, or law connected to distinct ethnic or cultural groups within a society.’60 The observation that there is a plurality of legal systems is not reducible to political pluralism. Not all legal orders need to claim sovereignty, although most claim some form of legitimate authority; yet this authority may be theoretical, not practical (to use Raz’s dichotomy).61 Associations may also be organized around principles of personal charisma or shared commitment, as opposed to formal rules; they may thus exist within a legal system without being themselves legal systems, which would make them subjects of political, not legal pluralism.62 Legal orders may also be transnational or international to varying degrees, and thus escape easy identiication with the mostly domestic associations that primarily concern political pluralists. This is especially true of unoicial law, such as customary law, and of law that is organized in ways alien to those of the modern state, such as indigenous or ‘chthonic’ law.63 As Brian Tamanaha notes: ‘Legal pluralism exists whenever social actors identify more than one source of “law” within a social arena.’64 Nonetheless, it is generally true that political and legal pluralism are often closely aligned, since many (perhaps all) political claims, when institutionalized and made public, take something resembling a legal form. Robert Cover is most closely identiied with the view that legal orders may, and often do have, independent origins—that they are foundationally plural—and that their rules of legality cannot be understood on the terms of 60 Brian Z Tamanaha, ‘Understanding Legal Pluralism’ (2007) 29 Sydney Law Review 375. 61 Raz, note 22, 35. For the distinction between principles of shared commitment and legal principles, see Lon L. Fuller, ‘Two Principles of Human Association’ in Principles of Social Order (Hart Publishing, 2002) 67f. 62 63 H Patrick Glenn, Legal Traditions of the World (4th edn) (Oxford University Press, 2010) chapter 3. 64 Tamanaha, note 60, 396. Legal Pluralism 27 another normative order—that they are incommensurable. This is especially true of insular communities which, while perhaps not being constituted as a corporate person (as Figgis would have associations be) or asserting exclusive authority over their members, nonetheless create a normative world that stands apart from the normative world of the state. Indeed, for Cover: ‘Insular communities often have their own, competing, unambiguous rules of recognition. They frequently inhabit a nomos in which their distinct Grundnorm is supreme from their own perspective.’65 Cover also understands that, whatever the merits of the state’s actions in any given case, much of the operation of judicial system is jurispathic, that is, it routinely suppresses, mutilates, and kills competing sources of legal creation, competing jurisgenerative impulses. In Cover’s view, the jurispathic nature of courts is a normative problem, something to be avoided. He closes his seminal ‘Nomos and Narrative’ with the call to ‘stop circumscribing the nomos; we ought to invite new worlds.’66 But this claim need not be normative; it may be simply descriptive. A clash between or among coexisting oicial legal systems within a given social arena can also take place, as indicated earlier, and plays out in a variety of ways. . . . Clashes can be resolved through political compromises arranged by their respective institutional authorities. In some situations the competing oicial legal authorities will ignore one another, or explicitly refuse to honor their determinations (as when states refuse to honor rulings of the World Court). One oicial system may acknowledge the contrary oicial legal system and accept its indings (begrudgingly or enthusiastically). Sometimes they will face of in a direct clash which continues unresolved. Sometimes the more powerful oicial legal system simply imposes its will on the other through superior raw economic or military or political power.67 In either case, something is genuinely lost, either because a normative order is extinguished, or because the rules of legality of a legal order are dismissed or cast aside in terms entirely alien to that order. Cover’s views on the nomos as the site of legality are rich but also controversial. Yet there are many other scholars whose avowal of legal pluralism does not depend on Coverian legal ontology. Harold Berman makes legal pluralism a cornerstone of his jurisprudence, as I will discuss in chapter 2. For him ‘[p]erhaps the most distinctive characteristic of the Western legal tradition is the coexistence and competition within the same community of diverse jurisdictions and diverse legal systems.’68 Perry Dane, whose writings bear on church–state relations but also on disputes between tribal and federal sovereignty, does not make direct reference to the pluralist tradition, 65 Cover, note 59, 43. 68 Harold Berman, Law and Revolution (Harvard University Press, 1983). 66 Cover, note 59, 68. 67 Tamanaha, note 60, 405. 28 The Structure of Pluralist Arguments but his argument about the intractable conlict between multiple sovereignties parallels pluralist claims.69 Recently, Dane and other scholars of what has been called the ‘New Religious Institutionalism’ make direct reference to British or Calvinist pluralists in support of their arguments in favour of ecclesiastical autonomy, even extending them explicitly (in Paul Horwitz’s case) to institutions beyond the church, like the universities and the press.70 And students of the European Union, like Nick Barber, have abstracted the general structure of legal pluralism from the jurisdictional conlicts in the EU. [A] legal order can contain multiple rules of recognition that lead to the order containing multiple, unranked, legal sources. These rules of recognition are inconsistent, and there is the possibility that they will, in turn, identify inconsistent rules addressed to individuals. In addition, pluralist orders lack a legal mechanism able to resolve the inconsistency; there is no higher constitutional body that can resolve this dispute through adjudication or legislation. Consequently, pluralist legal orders contain a risk, which need not be realized, of constitutional crisis; of oicials being compelled to choose between their loyalties to diferent public institutions.71 The themes of incommensurability and inconsistency, leading perhaps to tragic choices or irresoluble conlicts of loyalty on grounds of legal validity alone, demonstrates the parallel of legal pluralism to meta-ethical and political pluralism. 1.5 Pluralism Across the Domains of Practical Reason I have argued that all non-trivial pluralist arguments make three claims about the normative category that is their object, which I refer to as ‘X’ (whether it is value, sovereignty, or legality). As stated, these three claims are the claim 69 Perry Dane, ‘ “Omalous” Autonomy’, 2004 Brigham Young University Law Review 1715, ‘The Varieties of Religious Autonomy’, in Gerhard Robbers (ed.), Church Autonomy: A Comparative Survey (Peter Lang Publishers, 2001); Perry Dane ‘The Maps of Sovereignty: A Meditation’, 12 Cardozo Law Review 959 (1991) and, note: Perry Dane ‘Religious Exemptions Under the Free Exercise Clause: A Model of Competing Authorities’, 90 Yale Law Journal 350 (1980). P Horwitz, The Agnostic Age: Law, Religion, and the Constitution (OUP, 2011) and First Amendment Institutions (Harvard University Press, 2013); R Garnett, ‘Religious freedom, church autonomy, and constitutionalism’ 57 Drake Law Review 901 (2009) and ‘ “The Freedom of the Church”: (Towards) an Exposition, Translation, and Defense’, Journal of Contemporary Legal Issues, forthcoming (2013). For a criticism of the pluralist position, see R Schragger and M Schwartzman, ‘Against Religious Institutionalism’ 99 Virginia Law Review 917 (2013) and for a response, see P Horwitz, ‘Defending (Religious) Institutionalism’ 99 Virginia Law Review 1049 (2013). 70 71 Nick Barber, The Constitutional State (Oxford University Press, 2011) 145–46. Across Domains of Practical Reason 29 of plurality, the claim of incommensurability, and the claim of tragic loss. The three claims are extrapolated from the paradigmatic case of pluralism, and also the best discussed in the philosophical literature: meta-ethical pluralism or pluralism of values. Using the structure of the argument for value pluralism as a model, the structure of normative pluralism in politics and law is found to make equivalent claims about sovereignty and legal orders, respectively. Pluralism across the domains of practical reason is analogous or parallel in the form of its arguments, but is, in each domain, substantively independent. That is, pluralist arguments follow the same structure whether they refer to a plurality of value, of legitimate political authority, or of the sources of legality, but a defence of pluralism in one of these domains does not entail acceptance of pluralism in another. This is most evident in the relationship between meta-ethical (value) pluralism and political or legal pluralism. One can value individual freedom above all other goods, and think it best protected by a system of countervailing powers and independent associations, as in the case of Constant. Or, one can ind in the absence of an ultimate scale of values the justiication for absolute and undivided political authority, as in the case of Hobbes. The relationship between political and legal pluralism is much more muddled, as is the relationship between politics and law, but I think that substantive independence of each domain still holds. Drawing on Weber’s tripartite classiication of the ways of justifying legitimate domination,72 we can imagine a charismatic antinomian who contests the authority of the state without thereby presuming to proclaim or institute an alternative set of rules against state law; political pluralism would result, but not legal pluralism, although the claims of law to universal eicacy over a given population may fall short in this case. From the opposite standpoint, we can interpret certain legal institutions as pluralistic in the domain of law, but not of politics. The system of law in early modern Britain, in which the courts of common law coexisted and competed with the courts of chancery and prerogative courts, was a system of legal pluralism, but not political pluralism, as the monarch stood at the apex of both hierarchies.73 Whether either political pluralism without legal pluralism or its converse are stable situations is open to question. Lon Fuller suggests that associations founded on shared commitments come to rely more on legalistic principles the more the beneits of membership grow and the cost of exclusion 72 Max Weber, ‘Politics as a Vocation’ in HH Gerth and C Wright Mills (eds), From Max Weber: Essays in Sociology (Oxford University Press, 1946) 78–79. Harold Berman, Law and Revolution, II: The Impact of the Protestant Reformations on the Western Legal Tradition (Belknap Press, 2003) 307–13. 73 30 The Structure of Pluralist Arguments becomes palpable to the associates.74 Robert Cover fears that the moment of legal creation—jurisgenesis—that characterizes an emerging nomos quickly ossiies into an imperial order in which the legal order is alienated from those who created it.75 In the cases that occupy political pluralists, the ones most likely to present problems of competing sovereign jurisdiction, political sovereignty is often indistinguishable from legal authority; one is constituted by the other.76 I will assume this hybrid pluralism as my object of inquiry: an association that makes a claim to sovereignty—as ultimate arbitral authority—which takes the form of a distinct and separate legal order. 74 Fuller, note 62, 92. 75 Cover, note 59. It is no coincidence that most of the associations in question can be traced back to a medieval order in which the dominant theory of sovereignty presumes that political authority is legally constituted. I will have more to say about this in later chapters, especially chapter 5. 76 8 Pluralist Authority The type of polity that political pluralists recommend is, needless to say, highly controversial. Yet philosophers at least as far back as Hobbes have questioned not only the desirability of a pluralist polity or the accuracy of the pluralist description of society, but also, more problematically, the very coherence of the pluralist concept of authority.1 It is the conceptual coherence of pluralism that concerns me here, that is, not whether all associations are legitimate, but of whether any can ever be legitimate. This conceptual concern is a problem for the pluralist tradition because most of the arguments that political pluralists have used to undermine the claims of the modern state to absolute and indivisible authority leave no room for the exercise of authority by associations themselves. If political pluralism is to make a coherent claim for the authority of associations, it must be able to explain the structure of pluralist authority, and not simply assume that it will be obvious once overstated claims to state sovereignty are cut down to size.2 In this chapter I will reconstruct one prominent pluralist critique of state authority—the one proposed by Harold Laski—and explain how it undermines the very basis of the authority of associations. I will then propose an alternative account derived from Joseph Raz’s famous ‘normal justiication’ of the authority of law.3 This alternative pluralist account allows for the 1 Thomas Hobbes (E Curley (ed.)), Leviathan (Hackett, 1994) chapter 18. 2 As explained in chapter 5, I refer interchangeably to ‘sovereignty’, which follows British pluralist practice, and ‘authority’, which I think analytically more precise. This may require justiication. Preston King describes a sovereign as ‘an ultimate arbitral agent—whether a person or a body of persons—entitled to make decisions and settle disputes within a political hierarchy with some degree of inality . . . [which] implies independence from external powers and ultimate authority or dominance over internal groups’. Preston King, The Ideology of Order: A Comparative Analysis of Jean Bodin and Thomas Hobbes (2nd edn) (Frank Cass, 1999) xviii. Harold Laski similarly deines sovereignty as ‘the legal competence to issue orders without a need to refer to a higher authority.’ Harold Laski, ‘Law and the State’ (1929) Economica 9 (27): 267–95, 267. Thus, the use of sovereignty by the pluralists approximates that of Joseph Raz in the theory discussed in this chapter. 3 See: Joseph Raz, Practical Reason and Norms (Oxford University Press, 1975); Jospeh Raz, The Authority of Law (Oxford University Press, 1979); Jospeh Raz, Ethics in the Public Domain (Oxford University Press, 1985); Joseph Raz, The Morality of Freedom (Oxford University Press, 1988); Jospeh Raz, Between Authority and Interpretation (Oxford University Press, 2009). 162 Pluralist Authority recognition of legitimate authority in associations, but it also necessitates the recognition of the authority of the state, both a direct or irst-order authority over persons qua citizens, and an indirect or second-order authority over persons qua members of various groups. Thus, while vindicating the authority of associations, I hope to repudiate the antinomian stance of much of political pluralist theory, and set it on sounder footing. As I have already mentioned, the renewal of the pluralist thesis about the autonomy of associations seems especially relevant today. Invariably, many cases of conlicting sources of authority come from the experience of churches and other religious institutions: the opposition of Roman Catholic hospitals to provide contraceptive services to their employees on the grounds that it is a violation of the religious freedom of the institution; recent or imminent judicial decisions in Canada and the United Kingdom over religious educational institutions (respectively, the content of secondary school curricula in Loyola High School in Québec, and the religious classiication of candidates for admission to the Jews Free School in the UK); the disputes over church property of conservative parishes wishing to leave liberal dioceses in the American Episcopal Church; as well as ecclesiastical opposition to restrictive immigration policy and the subsequent provision of sanctuary on church grounds to immigrants facing deportation. But the theory extends also to other associations, such as universities, which have long airmed (and long have had trampled) their rights to self-governance. So have the two heirs to the medieval guild: associations of liberal professionals (lawyers chief among them) and trade unions who have long protected their autonomy vis-à-vis both state and private enterprise. 8.1 The Tradition of Political Pluralism A brief recap of the pluralist tradition might illustrate the problem of authority in pluralism. The British pluralists contest the view that the state is the unlimited and unitary source of legitimate authority in any given society, that it is owed allegiance above all other organized groups, and indeed that other associations can legitimately exist only as long as the sovereign tolerates them. This position they label political monism. Against monism, the pluralists contend that, in any society, there are multiple sources of legitimate political authority personated in various groups and associations, of which the state is but one; none of these has inherent precedence over the others.4 Groups—e.g. churches, unions, universities—exercise a measure of 4 Laski, note 2, 283. The Tradition of Political Pluralism 163 sovereignty in their own right, and it is only this dispersion of authority that secures freedom against the state.5 Among the British pluralists, the most academically inclined was Harold Laski. Laski forcefully contested the state’s claim to exclusivity of sovereignty, but his arguments against the state’s claims to authority would also serve to undermine the authority of other groups.6 He was, in essence, more of an anarchist than a pluralist.7 Yet it is this tension in Laski’s thought that makes him an ideal exponent of the antinomian defect of pluralist theory. Laski seems to have reached this conclusion himself and, as a result, his attitude towards pluralism changes considerably later in his life. On one hand, it is Laski who, in his early writings, ‘provides[s] a name for what had been a somewhat heterogenous body of thought’,8 and who popularizes such thought in academic circles. But it is also he who later abjures pluralism on philosophical and political grounds on his way to embracing libertarian Marxism and Labour Party politics.9 The ambivalence he expresses towards the authority of groups leads to his eventual abandonment of some important elements of the pluralist critique: irst the idea of group personality and later the idea of the equal stature of the state and other associations. One reason for Laski’s abandonment of pluralism is his rejection of the idea of the ‘real personality’ of groups, an idea most emphatically advanced by John Neville Figgis10 and discussed in Chapter 9. A second set of reasons for Laski to abandon pluralism is political. By The Grammar of Politics, Laski comes to think of the state as diferent from other associations on a number of grounds, chief among them that the state is a compulsory territorial association where other groups are voluntary, and that the state alone is able to represent human beings as such, in those common interests that they have as citizens and not as members of any one group. The satisfaction of these common interests is the function of the state, and it is a function that ‘involves a pre-eminence over other functions.’11 Whether the state can fulil this function, is contingent on historical, social, and economic circumstances and is always subject to the airmation of citizens in every particular case. What changes in Laski’s view of associations, then, is not so much the 5 David Nicholls, Three Varieties of Pluralism (Macmillan 1974) 5f. 6 Harold Laski, ‘The Personality of Associations’ in Paul Hirst (ed.), The Pluralist Theory of the State (Routledge, 1993) 180. 7 Avigail Eisenberg, Reconstructing Political Pluralism (State University of New York Press, 1995) 75–83. 8 David Runciman, Pluralism and the Personality of the State (Cambridge University Press, 1997) 178. 9 Runciman, note 8, 188f; David Schneiderman, ‘Harold Laski, Viscount Haldane, and the Law of the Canadian Constitution in the Early Twentieth Century’ (1988) 48 University of Toronto Law Journal 521. 10 John Figgis, Churches in the Modern State (Longman, Green and Co., 1913). 11 Harold Laski, A Grammar of Politics (5th edn) (George Allen & Unwin, 1967) 70. 164 Pluralist Authority principle that human beings are ‘community-building animal[s]’—a position sustained throughout his oeuvre12—and that they may build quite a large number of them, but that the state is more efective than other associations in carrying out especially important social enterprises. In one sense the state’s power of compulsion is morally irrelevant, as the de facto exercise of power does not justify it; but in Laski’s view, the efectiveness of the state in carrying out a function that, in his later years, Laski had come to see as pre-eminent, does justify elevating the state above its previous rank. The argument is tied up with the language of function, which Laski borrows from GDH Cole, and which sufers from its own problems. Cole expressly subordinates the authority of associations to his corporatist functionalism. He argues that each association possesses a function which emanates from the satisfaction of common wants and the execution of common purposes, and that the coherence of society depends on all associations fulilling their function in a way that is ‘complementary and necessary for social well-being’; he therefore dismisses as ‘perversions of function’ much of the conlict, contradiction, and redundancy that are part-and-parcel of relations between associations and the state.13 Suice it to say that Laski recognizes that specifying a function requires the identiication of a speciier, and leaving this task up to the agents of the state ‘makes them judges in their own cause.’14 But this does not lead Laski out of the diiculty of setting limits to state discretion.15 My account does not rest on any such ‘thick’ functionalism and in fact presumes that a pluralist society is characterized by disagreement over both the content and the arbiters of function, and I am agnostic about even the plausibility of a concept of function, which seems artiicially tidy, or of a common good which is more than an overlap of particular allegiances. It does rest on a certain instrumentalism about authority, but this is far from the speciication of discrete roles to diferent social groups. A further question is how representative is Laski of the early pluralists. In some ways he is not, but only because the school was not especially cohesive. Figgis, for instance, seems much less antinomian than Laski and endorses 12 Laski, note 11, 67. 13 GDH Cole, ‘Social Theory’ in Hirst, note 6, 60–67. 14 Laski, note 11, 70; Cole, note 13, 80. In this, Laski was more clear-headed than Cole, whose appeal to Rousseau’s General Will in orienting social choice towards ‘the good of the community as a whole’ (GDH Cole ‘Conlicting Social Obligations’ (1914) 15 Proceedings of the Aristotelian Society, New Series, 140–59, 158–59) conirms the view that he was ‘hardly a pluralist at all’ (David Nicholls, The Pluralist State: The Political Ideas of JN Figis and His Contemporaries (2nd edn) (St. Martin’s Press, 1994) 3). 15 Jens Bartelson observes that ‘Laski is characteristically ambivalent about the role of the state, since he wishes to reinterpret this concept along pluralist lines, but he inds it diicult to strip it of all its monist connotations without having to deal with the problem of political order by introducing an equally monist substitute’. Jens Bartelson, The Critique of the State (Cambridge University Press, 2001) 106. The Tradition of Political Pluralism 165 something like what I call the ‘second-order authority’ of the state in his idea of society as communitas communitatem. The state has a role in protecting individuals against injustice, whether from each other or from the groups to which they belonged, and it does so mainly through the institutions of private law—‘as the guardian of property and interpreter of contract’— but it also should abstain from meddling in the governance of groups, and especially in their development and social reproduction.16 Yet Figgis is decidedly ambiguous about the role of the state in adjudicating disputes between political authorities, groups, and individuals,17 so much so that it is doubtful whether he thinks the state has any direct or ‘irst-order’ authority over citizens. Citizens are only members of the state through their membership in other communities, and never to the state directly. This subsidiary structure, which intentionally recalls Johannes Althusius’ political theory,18 misapprehends the claims of the state to direct and independent authority over citizens. So, although Figgis accepts that ‘societies may come into collision with the State; so may individuals [and] always there is a possibility of civil war’,19 he must interpret these conlicts as a failure of the state either to set boundaries correctly or to keep its role limited to the provision of institutions of private law. The view that I defend in section 8.4—that the conlict of pluralism is inherent to the state’s multiple sources of authority—is not clearly there. So through a criticism of Laski we may also arrive at a broader reconstruction of the pluralist tradition. Harold Laski makes the most comprehensive case against the modern state’s claim of unlimited and exclusive authority. Laski argues that the state’s claim to sovereignty is false on moral, pragmatic, and legal grounds. The state makes the moral claim that its commands are binding on the subject, not because of the intrinsic merit that they may have, but because they issue from a sovereign authority. The state also makes the pragmatic claim that it is—or at least ought to be—the only body that can impose its will on all subjects and associations, as it possesses a monopoly of the legitimate use of physical force. Finally, the state makes the legal claim that only its will is law because it is the only person or body in society who is habitually obeyed by the bulk of the population, and who does not, in turn, owe habitual obedience to any other body.20 Laski objects to the truth and to the desirability of all these propositions. I will take these in reverse order, as Laski’s objection to the state’s moral claim is the main focus of the following discussion. The question of whether 16 John Figgis, ‘The Church and the Secular Theory of the State’ in Nicholls, note 14, 158. 17 Figgis, note 10, 90. 19 Figgis, note 10, 92. 20 John Austin, The Province of Jurisprudence Determined (HLA Hart, ed.) (Hackett, 1998) 195. 18 Johannes Althusius, Politica (FS Carney, ed.) (Liberty Fund, 1995). 166 Pluralist Authority it is only the rules promulgated by the state that should be properly characterized as ‘law’ is deeply complicated, and as much the domain of anthropology and sociology as of moral, political, and legal philosophy. The extensive literature on legal pluralism that has emerged over the last half century calls into question the Austinian criteria of habitual obedience and the boundaries drawn to deine the ‘bulk of the population’, and points to a variety of sources of normative order that thrive in even the most modern societies.21 As a statement of fact, Austinian monism is false, or at least imprecise. Depending on the way that the boundaries are drawn, we observe diferent objects of obedience, even among the same individuals. For instance: as neither the Catholic Church nor the Italian state habitually regards the other as superior, and as some observing Catholics are also Italians, some Catholic Italians will have two sovereigns . . . an Austinian impossibility. An apologist for the state’s legal claim may argue that the obedience to the Church is the wrong kind of obedience, or that obedience needs to be backed by force, but these answers depend on normative assumptions or extraneous factors. Laski’s legal objection seems to be this: the deinition of obedience, population, and society—and thus of law—are either so value-laden as to be question-begging, or else provide little guidance to practical conduct. What Laski calls the pragmatic claim is also valid, but misses the point. Both defenders and detractors of authority agree that the mere ability to impose one’s will on another—to whatever extent—is not a suicient basis for a claim of authority.22 As Raz explains, not all exercise of power is an appeal to authority. What distinguishes an authority is that it makes a special claim to legitimacy for itself, to the fulilment of certain moral or rational criteria necessary to demand obedience. The ability to exercise force in defence of an authoritative directive may be one of the criteria relevant to its legitimacy (coordination problems usually require the agent to credibly provide incentives and disincentives, not merely exhortations) but it is not the whole, or even the core, of legitimacy. The pragmatic claim is either irrelevant or, again, question-begging. The force of Laski’s argument thus rests on the moral objection. Laski maintains that the state expects its subjects to obey its commands and its laws because they issue from the state, regardless of their intrinsic merit or conformance to the strictures of morality. This is not to say that the oicers of the state do not think its laws and proclamations are moral. Rather, it 21 As mentioned in chapter 1, there is no evidence that legal pluralism is historically related to political pluralism, except in a common choice of adversaries (see Brian Tamanaha, ‘Understanding Legal Pluralism’ (2007) 29 Sydney Law Review 375). For this reason, I have not discussed legal pluralists such as Robert Cover or (arguably) Lon L Fuller in this chapter, although, as I say elsewhere, their arguments are in many ways similar to those of the political pluralists. 22 Robert Wolf, In Defense of Anarchism (University of California Press, 1998) 9. The Tradition of Political Pluralism 167 means that the obligation to obey depends on the source of the command, not on its content. Laski objects that this claim to moral sovereignty, and its implied duty of obedience, represents a usurpation of the subject’s capacity of moral judgment. This usurpation is illegitimate, irst, because ‘whatever the requirements of legal theory [. . .] in actual fact no man surrenders his whole being to the state. He has a sense of right and wrong. . . . The state . . . is for him sovereign only where his conscience is not stirred against its performance.’23 This usurpation is also illegitimate because no individual ought to support an action that does not conform to morality, even if the state is generally right in other respects, or if the ultimate aim of the state is noble. Laski claims that ‘[t]he only ground upon which the individual can give or be asked his support for the state is from the conviction that what it is aiming at is, in each particular action, good;’ the state must ‘[command] his conscience.’24 Laski grounds the legitimacy of authoritative pronouncements on the values towards which the enactments aim, and their eicacy in achieving them.25 ‘The obedience that counts is the obedience of an actively consenting mind; and such a mind is concerned less with the source of law than with what the law proposes to do’ and only consents after deliberation on the concrete merits of a given law or policy.26 This argument is familiar to contemporary political philosophy. It is the position of philosophical anarchism represented, for one, by Robert Paul Wolf ’s statement that ‘[t]he moral condition demands that we acknowledge responsibility and achieve autonomy wherever and whenever possible.’27 Laski acknowledges that his arguments against state authority come close to advocating anarchism: ‘[t]his is, of course, a pluralistic theory of law [as] the facts before us are anarchical.’28 But this conclusion sits uneasily with his pluralism. The reason is that Laski takes the Austinian criterion of sovereignty as his point of departure, even as he criticizes its implications. John Austin styles the sovereign as a single but determinate individual or body of individuals to whom habitual obedience is rendered by the bulk of society; and who does not, in turn, render such obedience to anyone else.29 Yet if habitual obedience is the measure of sovereignty, then the state cannot be the only sovereign around. The state, Laski contends, is but one of many groups competing for the allegiance of men and women.30 Churches, trade unions, families even, hold the loyalty of individuals to at least the same degree as the state. They are, in a real and important way, self-governing, in 23 Harold Laski, Authority in the Modern State (Yale University Press, 1919) 43. 25 Laski, note 2, 274–75. 28 Laski, note 2, 294. 30 Harold Laski, Studies in the Problem of Sovereignty (Yale University Press, 1917) 6–20. 26 29 Laski, note 2, 275. 27 24 Wolf, note 22, 17. Austin, note 20, 195. Laski, note 23, 46. 168 Pluralist Authority that they pursue collective goals with unity of purpose, and do not habitually subordinate their values and their ends to those of another authority. From a normative vantage point, Laski also concludes that competition between these associations and the state, and between the associations themselves, serves to preserve freedom, foster human creativity, and sustain a responsible polity.31 But how do associations efectively hold the allegiance of their members? It is not (or not always) by attempting to convince the members of the wisdom, righteousness, or eicacy of every decision, norm, or policy. When a church counsels its adherents not to practice certain modes of contraception, or when a trade union tells its members not to cross a picket line, or when a parent instructs her child not to stay out late on a school-night, they mean these directives to be obeyed even if the subject does not agree with the reasons for the directive. For a group to be self-governing means that it exercises authority over its members. A church must be able to expel heretics, a trade union to negotiate the terms of a contract, a parent to set the rules of a household. Laski’s social and political theory recognizes a plurality of associations, many (and perhaps all) of which exercise authority with regards to their members. But his categorical objection to the moral claims of sovereignty denies the possibility of legitimate authority altogether. It denies associations the capacity to function. Avigail Eisenberg explains the problem well. ‘[T]he dominance of an extreme form of individualism in Laski’s theory undermines the basis for pluralism in it. If the ends to which his theory are directed are individualistic, and if the means are also primarily individualistic (i.e. requiring individual consent, respecting individual rights, and protecting individual liberty), why did Laski need pluralism?’32 8.2 An Account of Authority Political pluralism needs a better account of authority if it is to give adequate grounding to the autonomy of associations. A plausible candidate is Joseph Raz’s account of authority, which also develops as a response to the paradox of authority presented in Robert Paul Wolf ’s challenge.33 I invoke Raz’s theory as a way to resolve the speciic problem of grounding the authority of associations. From the outset, there is a possible (and serious) objection: namely, that Raz’s approach to the problem of authority is incompatible with Laski’s treatment of the subject, especially because 31 Henry Magid, English Political Pluralism: The Problem of Freedom of Organization (Columbia University Press, 1941) 54. 32 Eisenberg, note 7, 81. 33 Raz, Authority of Law, note 3, 26f. An Account of Authority 169 Raz reduces authority to the language of instrumental reasons for action, whereas Laski’s critique of authority is historical, sociological, and phenomenological and expressly rejects an exclusively rational approach. ‘The answer to the problem of obedience’ Laski writes: is, of course, that all theories which strive to explain it in purely rational terms are beside the mark; for no man is a purely rational animal. The State as it was and as is inds the roots of allegiance in all the complex facts of human nature; and a theory of obedience would have to weigh them diferently for each epoch in the history of the State if it were to approximate the truth.34 Raz’s account of authority is expressly instrumental, that is, it grounds authority on its usefulness in advancing the reasons for action that independently oblige a given subject. Raz is credited, even by critics, with ofering the canonical instrumentalist account of authority.35 But Laski also couches authority in instrumentalist reasons. This is a constant from his early works, where he argues that ‘the state is simply an organization existing for the promotion of an end’,36 to the later, where he reiterates that ‘the State is not itself an end, but merely the means to an end, which is realized only in the enrichment of human lives.’37 Laski does not think, however, that the state’s right counsel is suicient to command obedience. Consent—‘the obedience of an actively consenting mind’—is necessary for authority to be legitimate and, while the impetus to obey is complex and socially and historically contingent, it is nonetheless possible to submit it to the examination of reason.38 In this Raz largely agrees. Raz distinguishes the question of the conditions that could make authority legitimate from the question of whether a subject has an obligation to obey. The question of authority asks whether it is, in principle, ever permissible not to exercise autonomous judgment in every single case. For Raz, it is; for Laski, it is not. But for a given individual to be bound to a given authority, she must possess ‘a sense of belonging to the community and identifying with it’ which, while not consent, performs the same role in rendering authority legitimate.39 Raz does not explore the possibility that this feeling may arise with regards to 34 Laski, note 11, 22. 35 Thomas Christiano ‘Authority’ in E.N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (Stanford University Press, 2012). Available from: <http://plato.stanford.edu/archives/spr2012/entries/authority/> accessed 2 July 2013. The instrumentalist account contrasts with other explanations of political authority which may seem just as congenial to Laski’s pluralism, most notably Ronald Dworkin’s recourse to the associative obligations that are generated in genuine political communities (Ronald Dworkin, Law’s Empire (Harvard University Press, 1986) 195f; cf. also Stephen Perry, ‘Associative Obligations and the Obligation to Obey the Law’ in Scott Hershowitz (ed.), Exploring Law’s Empire (Oxford University Press, 2008) 183–205; and Leslie Green’s appeal to consent as a better grounding for political obligation (Leslie Green, The Authority of the State (OUP, 1988), 158–87)). 36 Laski, note 23, 57. 39 37 Raz, The Morality of Freedom, note 3, 98. Laski, note 11, 88. 38 Laski, note 11, 23. 170 Pluralist Authority more than one community, but nothing in his system excludes this possibility, thus opening the way to a genuinely pluralistic conlict of obligations. Authority, as I mentioned, is not the mere exercise of power. A robber exercises power to force a victim to hand over his money, but does not claim to exercise authority over the victim. This is why Laski’s pragmatic objection to the state’s claim of sovereignty is inadequate. Anyone with suicient power—physical or otherwise—may force another to act in a certain way. But only by making a claim to legitimacy does the exercise of power become authoritative. ‘What distinguishes authoritative directives’ Raz explains, ‘is their special peremptory status. One is tempted to say that they are marked by their authoritativeness.’40 That is why de facto authority presupposes de jure authority.41 What matters is that authorities claim the right to impose duties on their subjects, to guide their actions, to get them to act in certain ways—and not just the power to do so. Authorities, moreover, do not claim that their directives are just ‘good reasons’ to think that certain actions should be done. They claim that their directives are reasons to do these actions. The diference is important. A reason to think that an action should be done is a reason for belief. It remains for the agent to consider this reason, and either accept it or disregard it. Those whom Raz calls theoretical authorities—experts, for instance—expect to be believed, but not to be obeyed. Practical authorities are the ones that concern us: authorities like a state, a church, a trade union, or a parent. Practical authorities expect obedience. They expect their pronouncements to be taken as reasons for action, whether or not the subject agrees with the reasoning behind them in a particular case.42 The utterance of a legitimate authority should then be the immediate reason for a subject’s compliance. ‘[T]he fact that an authority requires performance of an action’ explains Raz, ‘is a reason for its performance which is not to be added to all other relevant reasons when assessing what to do, but should exclude and take the place of some of them.’43 This Raz calls the pre-emption thesis, a descriptive thesis explaining what authority claims to do. Now, the pre-emption thesis seems to corroborate the suspicion that authority always entails the illicit usurpation or immoral surrender of judgment. But this suspicion is wrong, Raz insists, when we look at the usual way of accounting for the operation of legitimate authority. To be legitimate in a way that overcomes the paradox of legitimate authority, authority must be a rational and moral response to the problems encountered by 40 Raz, Ethics in the Public Domain, note 3, 212. 41 Cf. Raz, The Authority of Law, note 3, 9; Raz, The Morality of Law, note 3, 28. 42 Raz, The Morality of Law, note 3, 35. 43 Raz, The Morality of Law, note 3, 46. An Account of Authority 171 practical reason. It must serve the interest of the subject to conform her conduct to appropriate reasons for action. ‘[T]he normal way to establish that a person has authority over another person’, Raz proposes, ‘involves showing that the alleged subject is likely better to comply with reasons which apply to him (other than the alleged authoritative directives) if he accepts the directives of the alleged authority as authoritatively binding and tries to follow them, rather than by trying to follow the reasons which apply to him directly.’44 The content of those reasons is not the issue. The point is that, whatever one ought to do, one is more likely to do by following an authority than by acting on one’s own judgment. This is the normal justiication thesis (hereafter NJT). What can we conclude from the application of the NJT to the claims of non-state associations? First, it seems evident that most organized groups in society claim practical authority over their members in conformance with the pre-emption thesis. They claim that their authoritative utterances are reasons for action for their members, that their members should act on these reasons directly, and not merely weigh the authoritative utterance against other reasons for action. The problem is that it is not clear that this pervasive feature of associational life is allowed by a logical extension of Laski’s critique of the authority of the state. At times, especially in his later writings, Laski seems to suggest that the state is a theoretical authority of sorts, that it can assemble commissions of experts to suggest better ways of coordinating collective activity. The state’s utterances are at most reasons for belief. This is why Laski advocates for a thoughtful citizenry that can judge the state’s profered reasons. Laski perhaps supports what Raz calls the ‘recognitional’ conception of authority, which holds that the acceptance of authoritative utterances is to take them as reasons for belief, but not for action.45 Yet the concession to theoretical authority only reinforces Laski’s denial of practical authority, since no state has ever been content with the role of advisor to the populace. All states claim, rightly or wrongly, that the reasons that they profer are pre-emptive, that they substitute or displace other reasons that citizens could hold, such that the essence of state authority seems to be entwined with pre-emption. But by the same token, Laski’s position does nothing to vindicate the authority of associations other than the state, which also claim that their reasons are pre-emptive, at least with regards to their members. Their supposedly authoritative pronouncements become nothing but ‘expert’ opinions if Laski’s supposedly pluralist antinomianism is taken to its logical conclusion. 44 Raz, The Morality of Law, note 3, 53. 45 Raz, The Morality of Law, note 3, 29. 172 Pluralist Authority For example, on this interpretation, the Roman Catholic Church’s prohibition of certain forms of contraception ceases to be an imperative, and becomes an advisory opinion about the practical implications of doctrine. Some adherents may in fact take the church’s dictates as such, but it is not how we ordinarily think of religious canons or commandments, and certainly not how churches and other religious organizations conceive of them. Of course it is essential to the functioning of many organizations (not only churches) that their members accept the dictates of the organization as reasons for action; but to reframe this expectation in terms of theoretical authority is to transform associations into mere aggregations of contingently like-minded individuals. This may, for some, be an attractive depiction of social life, but it is not political pluralism. At this point, I have not demonstrated that the authority that groups claim for themselves is justiiable, but have at best shown that they do make such a claim. In this, the authority of associations is of a kind with the authority of states and, as a result Laski’s objection to the state’s authority must also be valid against groups. This makes for a very poor pluralist theory. A separate question is whether the authority of groups could, in theory, be legitimate. How does it fare under the NJT? The criteria of legitimacy for the authority of an association are the same as those of authority generally: a member of the association, in submitting himself to its authority, would ‘better conform to reasons that apply to him anyway . . . if he intends to be guided by the authority’s directives than if he does not.’46 But what are those reasons? In the case of the authority of state law, it is possible to give a single answer, at least with regards to all subjects of a particular political jurisdiction: the law applies generally and equally to all persons in a political society. But in the case of associations, such a general answer cannot always be given. The reasons that apply to members of one association may not apply to non-members. How does the legitimacy of these claims fare by the standard of the NJT? Consider an example: when the status of a recent convert is contested before a rabbinical court, say because religious status is a condition for receiving some service administered by the religious congregation, there are most likely several legal sources that speak on the matter. For a Jew (at least in the Orthodox tradition), the laws prescribed in these sources are reasons for action, but she is more likely to comply with these laws if she submits to the authority of a rabbinical court and lets the court determine the course of action that better conforms to Jewish law.47 None of these reasons would apply to a non-Jew. Rabbinical courts 46 47 Raz, Between Authority and Interpretation, note 3, 135–37. A similar situation gives rise to the controversy in R v The Governing Body of JFS [2009] UKSC 15, where the Supreme Court of the United Kingdom rejected the argument that denying preferential admission to a An Account of Authority 173 claim authority over those who come before them, and this authority seems to fulil the criteria of legitimacy of the NJT. This argument may apply to other associations as well. A trade union exists to strengthen the bargaining position of its members and secure their rights and exact greater beneits for them in the course of labour negotiations. Presuming that these negotiations take place under conditions that are morally acceptable—e.g. no threats of violence—and that each side in the negotiation intends to make demands that fall within the range of fairness—however deined—then every employee has a reasonable wish to get more, rather than fewer beneits. This is a perfectly acceptable reason for action for the employee. It is also reasonable for the worker to think that, by joining together with others similarly situated, delegating the task of collective bargaining to the union rather than seeking a separate deal, and abiding by compulsory unionization rules to minimize defectors and free-riders, she is more likely to get the beneits she wants. The union claims authority over the worker in accepting a collective bargain, say, or calling a strike, because it is acting for reasons that apply to the worker anyway. The worker accepts this authority as legitimate because she is thus more likely to comply with those reasons. The NJT again obtains. Now, this is not an argument for the rightness or wrongness of the content of the rabbinical judgments or Roman Catholic canon law, nor of the eicacy of compulsory unionization, or of the wisdom of parents. It is a statement about the claims that associations make, which are claims to legitimate authority, the sort of claim that can at least aspire to be right and binding on its subjects. The claim to legitimate authority, moreover, is essential to the functioning of an association. As Figgis put it, a church cannot exist without the power to excommunicate.48 This may be an overstatement brought on by Figgis’ Anglo-Catholicism, but it is not a gross one; even religious bodies that eschew formal excommunication retain the right to dismiss ministers and demand control over denominational property. Perhaps it is also an exaggeration to say that a trade union cannot exist without compulsory membership and the right to strike, but the union’s efectiveness would certainly be limited without them. And a parent certainly cannot raise a child without being able to make some decisions on her behalf, even after the child becomes psychologically capable of deciding some things for herself.49 Jewish school to a child whose mother had converted to Judaism in a manner not recognized by the Chief Rabbinate was impermissible ethnic discrimination. As the minority opinion notes, the characterization of Jewish status as religious or ethnic itself involves a conlict of authorities. 48 49 Figgis, note 16. When that moment arrives, however, we must weigh the value of making one’s own decisions against the value of making the right ones. Raz recently recognized this as the need to fulil the ‘independence condition’ to the question of the morality of authority ‘that the matters regarding which the [NJT] is met 174 Pluralist Authority 8.3 Reconsidering the Authority of the State A inal, but important controversy remains: where does this discussion of the authority of groups leave the authority of the state? In a straightforward sense, the same reasoning that applies to associations applies to the state: a citizen is more likely to abide by the reasons that apply to her—contributing her share in common burdens, or coordinating complex activities like automotive traic or pre-trial discovery—by submitting to the state’s authority, than by attempting to abide by her reasons directly. Yet there is another less straightforward way of admitting the legitimate authority of the state in relation to associations. A person may have good reason to submit to the authority of the state when doing so will make it more likely that she will be able to submit to those associations to which she should submit in accordance with the NJT. I have explained that, under the NJT, it is legitimate to submit to another’s authority if doing so will make a person more likely to conform to reasons that apply to her in any case. But this is the same as saying that, in these circumstances, she has a reason (moral or otherwise) to submit to a legitimate authority. This authority may be general, as when the citizen submits to the authority of a just state. But it may also be particular, as when an observant Jew agrees to abide by a rabbinical verdict, a Roman Catholic accepts papal authority, a worker embraces a collective bargain, or a child obeys the orders of his parent. One may conclude that one or more of these associations does have a valid claim on one’s allegiance, but there are myriad reasons that would cause a person to fail to obey them. Internally, she may experience weakness of the will, or insuicient motivation. Externally, the association may not have the means to make its decisions known, or may be subject to undue external inluence. It may be in her interest, then, to secure institutional safeguards that would make it more likely that she would indeed be able to abide by the decisions of the association. She might, for instance, want to ensure that it can act in ways that make its authority efective, e.g. by enabling the association’s exercise of proper control over its membership, its land, or its money. It may then be reasonable to accept the laws and policies of the state as legitimate when they enable institutions that allow for the recognition of the identity, or personality, of an association, and for the performance of its actions. Personality and agency are the elements of associational autonomy, and members of associations have reasons to sustain them. The legal are such that with respect to them it is better to conform to reason than to decide for oneself, unaided by authority.’ Raz, Authority and Interpretation, note 3, 137. The Intractability of Conlict 175 institutions that the state upholds thus come to have second-order authority over persons, at least as it applies to them qua members of associations. This is diferent from the irst-order authority that the state may have over a person qua citizen. But it is authority nonetheless and, from the perspective of a committed member of a group, it is legitimate if it indeed secures associational autonomy.50 8.4 The Intractability of Conflict A discussion of pluralist authority is not complete without an acknowledgement of the intractability of conlict, which is directly predicated on the scope of the claims that authorities make for themselves. Here I can only suggest how a pluralist theory of authority reconstructed along Razian lines might approach the problem. Raz makes several careful distinctions in deining the comprehensiveness of authorities’ claims, especially in the case of legal systems.51 Raz argues that such systems ‘claim authority to regulate all forms of behaviour, that is, that they either contain norms which regulate it or norms conferring powers to enact norms which if enacted would regulate it.’52 This claim is independent of the authority’s means to enforce regulation, and it is present even in the negative, which is to say that legal systems may permit a certain kind of behaviour—through constitutional rights, for instance—but do not thereby fail to regulate this behaviour, as ‘an action is regulated by a norm even if it is merely permitted by it.’53 Legal systems, Raz continues, also claim to be supreme, to have ‘authority to prohibit, permit or impose conditions on the institution and operation of all the normative organizations to which members of its subject community belong.’54 Raz understands supremacy as entailed by comprehensiveness: if a legal system claims authority to regulate every sphere of behaviour, it cannot simultaneously recognize another authority as independently and non-subordinately regulating any given sphere within the same community. 50 In principle, these functions could be performed by any legal order, not just the state. Some contemporary theorists have suggested that the functions of the state are being disaggregated to global and transnational institutions (e.g. Andrew Linklater, The Transformation of Political Community (Cambridge University Press, 1998) 176–77). I am somewhat sceptical of these arguments and think that the nation state is still central to the generation of legal institutions, but this is a matter of historical contingency. 51 The importance of the institutional aspect of normative systems that claim authority is clear in Raz’s early work, like Practical Reason and Norms, see note 3. It fades in later books, but has been convincingly reasserted by Andrei Marmor in ‘An Institutional Conception of Authority’ (2011) 39(3) Philosophy and Public Afairs 238 and ‘The Dilemma of Authority’ 2 Jurisprudence 121 (2011). 52 Raz, Practical Reason and Norms, note 3, 151. 54 Raz, Practical Reason and Norms, note 3, 151. 53 Raz, Practical Reason and Norms, note 3, 151. 176 Pluralist Authority The claim of supremacy can be related directly to Raz’s argument that the authoritative directives of law are ‘protected reasons’, reasons for action that at the same time rule out reliance on other reasons for action.55 A protected reason is both a irst-order reason for action and a second-order exclusionary reason to disregard other reasons as authoritative. In claiming the authority to impose conditions on the institution and operation of other normative systems (to the point of prohibiting them), a legal system is in efect ‘protecting’ its irst-order authoritative reasons, by limiting other sources of authority from intruding upon the comprehensive scope of its legal authority. In this context, the ‘normative organizations’ regulated should be understood to refer to other autonomous institutionalized systems. The systems are distinguished by possessing institutions ‘with power to determine the normative situation of speciied individuals, which are required to exercise these powers by applying existing norms, but whose decisions are binding even when wrong.’56 What is important in the claim of supremacy, then, is not that an individual may disobey or disregard the dictates of the law because she does not believe the order to be justiied in the particular case. Rather, the worry is that competing autonomous systems would each claim legitimate authority over an individual. The result would be either an impasse, or a reversion to the standard of judging every case on the basis of individual conscience, which efectively dismantles both state and associational authority. Finally, Raz claims that legal systems are open: they contain ‘norms the purpose of which is to give binding force within the system to norms which do not belong to it.’57 It should nonetheless be emphasized that, just because a legal system is open does not mean that it is pluralistic. Raz identiies the rules of conlict of laws (private international law) as designed to adopt and give force to norms of foreign systems—only through the norms of the domestic system—and the rules of contracts and companies as designed to adopt and give force to norms created by domestic subjects of the state—ultimately to be interpreted by state oicials. These are compatible with the legal system, as they do not actually question its supremacy or comprehensiveness. Raz’s enumeration of the features that characterize legal systems has been criticized even within the positivist camp.58 And strictly speaking, these critics are correct: neither supremacy nor comprehensiveness are necessary features of legal systems, or of institutional normative systems more generally. The claims of supremacy and comprehensiveness are bound up with the 55 Raz, The Authority of Law, note 3, 18. 57 Raz, Practical Reason and Norms, note 3, 152–53. 58 56 Raz, Practical Reason and Norms, note 3, 136. Andrei Marmor, Positive Law and Objective Values (Oxford University Press, 2001) 39–42; Scott Shapiro, Legality (Harvard University Press, 2011) 218–19. The Intractability of Conlict 177 emergence of the modern nation state, and are both a product and a justiication of the increasing dominance of this form of political organization ‘over separatism and medieval political structures.’59 However, even if we put aside the claim that supremacy and comprehensiveness are necessary features of legal systems, we should not dismiss the model lightly for two reasons: the irst is that, regardless of historical contingency, modern nation states do claim supremacy over all other associations in society, and even when they limit the scope of their authority, they do so not because they acknowledge external limits to their authority, but rather because of internal limits such as their own constitutional principles. The second reason, which pulls perhaps in an opposite direction, is that many of the associations that are the object of pluralist analysis today— churches, universities, cities, etc.—are descended directly from medieval institutions, or at least share important features with those institutions. The jurisdictional conlict that was, in a sense, constitutive of medieval political society can help us characterize certain aspects of current relations between organized groups, especially because many non-state associations did not wholly surrender their claims to institutional autonomy. Roman Catholic canon law, for example, no longer regulates many spheres which were once within its jurisdiction (e.g. the civil accidents of marriage), but rather adopts or defers to the relevant norms of the secular authority. This is not because it deems these domains as having somehow fallen into the inherent secular competence of the state; rather the church has reinterpreted its internal reasons, including its spiritual mission, as indicating deference to state law. But it has not thereby abandoned its claim to be the ultimate judge over its own scope of jurisdiction, or acquiesced to the state’s own claims to hierarchical superiority. Now, political pluralists have often replied to the state claim to supreme authority by denying the claim as false or incoherent. This is misleading on two counts. First, it overstates the claim to supremacy as a logical axiom that once disproven can be dismissed. The claim to supremacy, however, and the accompanying extension of jurisdiction to cover every aspect of human conduct, is a historical process that admits of degrees and an ideological justiication that relects as much an aspiration as a practical political reality; nothing is thus gained by attacking its logic. Second, the claim of supremacy is shared by many associations, if not at the core of their claims to authority, at least at the margin. Take, for instance, a university’s assertion of academic freedom against state intromission, whether for the institution directly or by the institution on behalf of its professors, which is an assertion of supremacy over a speciic sphere of human conduct and, at the same time, authority to 59 Marmor, note 58 above, 40. 178 Pluralist Authority determine the proper boundaries of that sphere. This authority is ordinarily considered to emerge from the nature of academic practice and community itself and to not require certiication from a superior authority. Even those associations that, because of historical or principled reasons, have retreated from claiming supreme authority to regulate all aspects of behaviour, may nonetheless claim supremacy at the margins, and even a modest claim may result in considerable conlict with the authority that the state claims for itself.60 All talk of the conlict of jurisdictions is, of course, most applicable to the confrontation between the primary or irst-order authority of the state and the corresponding irst-order authority of non-state associations. How does the consideration of the intermediate, second-order authority of the state afect our assessment? Here it is useful to see second-order authority as an answer to the problem of pluralist authority, which is to reconcile, (a) the pluralist contention that the existence of multiple associations each of which independently claims legitimate authority over their members imposes an external (or exogenous) limit to the authority of the state, with (b) the dominant contention that the state (and for that matter many other associations) recognizes only internal (or endogenous) limits to its claim of comprehensive authority, limits which it also claims supreme authority to delineate. Consideration of the second-order authority of the state may help with this reconciliation. If the state derives its second-order authority from its capacity to facilitate a subject’s compliance with reasons that apply to her as a member of an association, then the state must take (the existence of ) those reasons into account when exercising its authority. Those reasons are mediated by the association—the association is the inal arbiter of the ways in which its members would best comply with their associative reasons. For the state to substitute its judgment for that of the association regarding how the latter’s members would best comply with the reasons that apply to them as members would be to defeat the second-order reasons for the state’s authority, since the basis of this authority is the interest of members in subjecting themselves to the authority of the association directly. Or put in the reverse, a person qua member of an association has no reason to respect the state’s authority when the state purports to substitute its judgment for that of the association; in such cases, the member is only bound by the association’s authority. The pluralist account, then, rather than encouraging submission 60 There is some similarity here with Rogers Smith’s attempt to pluralize (though he does not refer to it as such) the notion of ‘political peoplehood’ beyond the nation state (Rogers Smith, Stories of Peoplehood (Cambridge University Press, 2003) 19f ) which also, because of its reliance on narrative, bears resemblance to Robert Cover’s legal pluralism (Robert Cover, ‘Nomos and Narrative’ (1983) 97 Harvard Law Review 4). Not all groups (or states), Smith observes, make claims equally strong or comprehensive, and this may have some bearing on the prevalence and intensity of conlict. The Intractability of Conlict 179 to the state, can serve as a justiication for disobedience.61 The efect of this strategy is to have the state internalize the external limit imposed by the existence of a competing authority. The state need not always defer to the reasons of persons qua members of associations over their reasons qua citizens; undoubtedly there will be instances when those reasons conlict, and the irst-order authority of the state will pull in a diferent direction than its second-order authority. Political pluralism accepts that such conlicts may arise and that they may have no principled resolution. But they can lead the state to acknowledge the authority of the association not as an exogenous (or external) limit on its authority, but rather as an endogenous (or internal) limit. Any solution ‘should be seen as the provisional results of complex acts of creation, not be reiied as the basic stuf of social and political reality.’62 This may facilitate interaction, dialogue, and negotiation over rigid assertion of jurisdictional exclusivity.63 To briely recap, Harold Laski denies the authority of the state for reasons that equally deny the authority of associations, efectively endorsing philosophical anarchism and rendering pluralism superluous. But it is possible to construct a concept of authority that applies as much to groups as to the state itself by appealing to the capacities that groups have for helping individuals achieve the variety of reasons that they ind compelling, and even for helping to constitute those reasons. Yet groups cannot efectively function in the absence of certain institutional conditions, and these the state is especially well placed to provide. The second-order authority that derives from the state’s role in giving institutional form to groups is independent of, and does not deny, the irst-order authority that the state may have over citizens. Political pluralism may thus be reconstructed as recommending a hybrid polity in which the state, rather than being dispossessed of all legitimate authority, is endowed with two sources of authority each in tension with the 61 This is the structure of the argument put forth by some Roman Catholic bishops over the United States government’s draft mandate for employers to provide contraceptive coverage in their employees’ health plans. The bishops claim that hospitals, orphanages, and other such enterprises are ministerial branches of the religious body, while the state considers them primarily as participants in the labour market who provide employment and services to the general public. It is not clear which authoritative deinition is superior, but the state’s subsequent exemption of religious employers from the mandate presumptively avoided a conlict that could have invited active resistance. This is not to endorse the result but merely to explain its structure. Under the account of authority I have described, the bishops could call on their congregants to deny the state second-order authority over them if the state undermined their religious mission as they understood it. This would have resulted in a conlict between the state’s irst- and second-order authority over Roman Catholics which could involve either religious or civil disobedience. 62 Henrik Enroth ‘Beyond Unity in Plurality: Rethinking the Pluralist Legacy’ (2010) 9(4) Contemporary Political Theory 458, 473. 63 For a similar strategy in legal pluralism, felicitously dubbed a ‘jurisprudence of hybridity’, see PS Berman, ‘Towards a Jurisprudence of Hybridity’ Utah Law Review 2010 (1) 11–29, 12. 180 Pluralist Authority other. The contribution of political pluralism is to recognize that this tension is a permanent feature of the human condition. Yet it can be better managed and negotiated if we properly construe and acknowledge the authoritative claims of the various organizations, including the state, which hold the allegiance of individuals.