Pluralism and the Universality of Rights
ABSTRACT: The problem of the coexistence of cultures arises inside modern societies that have a constitutional set-up expressed by 'pluralism.' Their central problem lies in the relationship between individuality and sociality, freedom and order. The function of law is to transform absolute pluralism into a relative pluralism limited by fundamental common interests, thus overcoming the problems that arise from the variety of different views of the world and from different values. In the context of H. Kelsen's Reine Rechtlehre, we ask: 1. Do pre-positive legal grounds exist that can claim to have universal validity under the conditions of pluralism? 2. Can the demand for pre-positive principles of law be compatible with renouncing particular material assertions of values on which no agreement can be reached and replacing them with the universally valid formal principles demanded in pluralistic democracies?
One of the most essential elements of the modern culture of law is to think of the idea of law as having its basis in reason - be it the metaphysical notion of reason, be it - from a more pragmatic viewpoint - the rationality of reasonable persons. 'Reason' is the human capacity for self-rule and for shaping reality in a humane way. True, the substantial notion of reason, that it be existent in its own right and independent of human influence, no longer belongs to the self-conception of most cultures. The interests and the attitudes, the experiences and the world-views of 'reasonable persons' (the concrete individuals) have in modern societies become pluralistic.
The constitutional state, the fundamental and human rights are - under the conditions of 'factual pluralism' (1) - the answer to the question of how to achieve a more just world.
In the following paper I would like to draw your attention to some of the issues linked to the concept of law in pluralistic societies. In three steps I will try to substantiate the fact that, and for what reason, fundamental rights and human rights provide the basis for the legitimation of the modern state in its constitutional form.
The crucial question is to whether - and if so, how - guidelines can be formulated which, given the existence of factual pluralism, can bind both the state as well as the law to an unqualifiable fundamental norm. My initial response to this question is: state and law share this norm as the basis of their morality and rationality, not as result of any particular material ethics which may exist in competition in the various cultures, but rather through the positivised fundamental and human rights.
The situation in which we debate law is a paradox one. In modern times the enforcement of subjectivity and individual rights has given rise to a collision of interests and because of this has made necessary the juridification, or regulation by law of the life relations of society which were previously regulated...