Political pluralism and the common law tradition.

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2016-08-30

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Abstract

The term “pluralism” has many meanings. In my project, I refer to the conception offered by a collection of British writers in the early nineteenth century. They understood pluralism as a response to the excesses of both individualism and state collectivism. They argued that individuals will always be found within a myriad of groups—families, churches, communities. Such groups are realities in their own right. They are not reducible to the individuals who make them up, nor are they legal fictions or mere concessions of the state. In fact, groups are constitutive of the state. The state owes its existence to groups, not the reverse. As a result, pluralists conceive the role of government to be the maintenance of a system of rules within which associations pursue their own ends.

Though pluralism thus understood came to full bloom among the English pluralists of early twentieth-century Britain, its origins read back to Germany—from Johannes Althusius in the early seventeenth century and Otto von Gierke in the late nineteenth. Each of these thinkers conceived of society as being built from the bottom up by an assortment of groups. My argument is that this organic view of society goes hand in hand with a parallel organic view of law, which conceives law as a historically unfolding emanation from the people rather than as a simple command of the sovereign.

In the second half of this dissertation, I turn to America. I argue that in early American history, a strong organic conception of law and society was present. Changes in our understanding of law have brought about corresponding changes in our understanding of society. The intermediary institutions praised by Tocqueville in the 1830s are much weakened as a result. We are left with the individual versus the state. Political pluralism offers a powerful alternative. I offer the jurisprudence of Justice John Marshall Harlan as a model for the practice of pluralism.

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