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Law as pluralism: The adequacy of legislation to conflicting fundamental commitments


Huston, J. Law as pluralism: The adequacy of legislation to conflicting fundamental commitments. 2011, University of Zurich, Faculty of Arts.

Abstract

The goal of this thesis is to define rules for the negotiation and adoption of laws so that, in each legislative jurisdiction, the laws are adequate to the potentially conflicting fundamental commitments of the members of the population in that legislative jurisdiction. Law as pluralism denotes legislation negotiated and adopted under conditions of conflicting fundamental commitments. Under the normative conception of pluralism put forward here, prima facie equal validity is accorded to all commitments held by a population, even where such commitments are incompatible with each other. As a corollary, laws should prima facie only bind members of the population whose fundamental commitments do not conflict with those laws. This has consequences for the negotiation and adoption of legislation: while descriptive fundamental commitments held by members of the population may serve as justifications for positions taken during legislative negotiations and hence indirectly as a basis for legislation, prescriptive fundamental commitments held by members of the population directly prejudice the content of legislation and hence should not serve as justifications for positions taken during legislative negotiations to the extent they are controversial. Under this conception, legislation is negotiated at a given level with the goal of achieving at least loose consensus at that level, according to which the laws are adequate to all the various potentially conflicting fundamental commitments held by the population at that level, even if the laws are thereby not yet fully enforceable at that level. Legislation is then negotiated at descending levels until tight consensus is reached at some level, whereupon the laws become fully enforceable.

The goal of this thesis is to define rules for the negotiation and adoption of laws so that, in each legislative jurisdiction, the laws are adequate to the potentially conflicting fundamental commitments of the members of the population in that legislative jurisdiction. Law as pluralism denotes legislation negotiated and adopted under conditions of conflicting fundamental commitments. Under the normative conception of pluralism put forward here, prima facie equal validity is accorded to all commitments held by a population, even where such commitments are incompatible with each other. As a corollary, laws should prima facie only bind members of the population whose fundamental commitments do not conflict with those laws. This has consequences for the negotiation and adoption of legislation: while descriptive fundamental commitments held by members of the population may serve as justifications for positions taken during legislative negotiations and hence indirectly as a basis for legislation, prescriptive fundamental commitments held by members of the population directly prejudice the content of legislation and hence should not serve as justifications for positions taken during legislative negotiations to the extent they are controversial. Under this conception, legislation is negotiated at a given level with the goal of achieving at least loose consensus at that level, according to which the laws are adequate to all the various potentially conflicting fundamental commitments held by the population at that level, even if the laws are thereby not yet fully enforceable at that level. Legislation is then negotiated at descending levels until tight consensus is reached at some level, whereupon the laws become fully enforceable.

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Additional indexing

Item Type:Dissertation
Referees:Marti U, Kohler G
Communities & Collections:06 Faculty of Arts > Institute of Political Science
Dewey Decimal Classification:320 Political science
Language:English
Date:2011
Deposited On:20 Mar 2012 07:54
Last Modified:05 Apr 2016 15:43
Related URLs:http://opac.nebis.ch/F/?local_base=NEBIS&CON_LNG=GER&func=find-b&find_code=SYS&request=006485392
Permanent URL: http://doi.org/10.5167/uzh-60939

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