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Morgan, Gay D. --- "Reflections on pluralist conundrums" [1998] NZYbkNZJur 5; (1998) 2 Yearbook of New Zealand Jurisprudence 71

Last Updated: 11 April 2015



Gay D. Morgan*

In the following discussion I consider some of the concepts and problems intrinsic to the idea of pluralism. In particular, after introducing some of the basic conceptions and conundrums of pluralism, I consider pluralism in the context of the social good "trust." I then explore possible interactive dynamics of pluralism and "trust" in view of Heidegger's theory of the "Background." I subsequently look briefly at two real world variants of "pluralism" to consider what values they further and to consider whether, and if so, how, those examples either maintain or foster "trust" in view of the "Background" conception. I also consider the depth of the resolution of the "liberal paradox" achieved by those variants of pluralism. I conclude with an exploration of possible implications of the discussion to the New Zealand context.


In the discourses of politics and jurisprudence, one often runs across the term pluralism. The term arises in various contexts and has multiple nuances; one reads of moral pluralism, value pluralism, political pluralism, ethnic pluralism' , cultural pluralism, organisational pluralism, legal pluralism, juridic pluralism, and in each of these contexts "pluralism" may have varying though related meanings. Therefore, one would do well to examine at least some of the term's usages, both descriptive and aspirational, in order to arrive at a nuanced and informed judgment as to its moral and pragmatic political value.

It might be useful, at the outset, to note that while "pluralism" is used in ubiquitous contexts, there is a unifying theme to the word "plural" in the sense of referring to a set of "x" which contains more than one member. Thus, for example, the traditional Austinian notion of a sole unitary sovereign as the ultimate and sole source of all law applicable within a state, is, at base, an antithesis of conceptions of, say, political or legal pluralism. The essence of pluralism in any of its contexts is

BA (Colorado), JD (Hons) (San Diego), LLM (Yale), JSD Candidate (Yale), Lecturer in Law, University of Waikato.

For now, ethnic and cultural pluralism will be used in the context of different groups, either internally or externally identifiable, with a normative approach which is, at some level, unique to that group.

some sort of normative multiplicity. Aspirationally, it is multiplicity without any of the "members" of the plural set being dominant or controlling over the others, and without there being any overarching unitary normative set within which the plural set is embedded, other than that, perhaps, of pluralism itself.

However, two caveats need to be noted. The first is that the essence of any of the many meanings of pluralism is not infinite multiplicity; having even two distinct normative members in a given set will render it normatively plural. Therefore pluralism may subsume the term normative dualism, which shall be defined as a particular set with two normative members. The two members of a dual set might each consist of internal subsets which are in turn normatively plural. Thus, in certain cases, an overarching dualism could also subsume a broader but subsidiary idea of pluralism. This may be particularly cogent in the New Zealand context, where some would argue that normative dualism with subsidiary pluralism2 is an accurate description of the social reality, and ought to be an accurate description of the legal or political system, where, of course, many pluralisms come into play. (And yet, all find themselves slotted into a unitary Austinian model; no wonder the fit is often noticeably uncomfortable!)

The second caveat is that pluralism is not, and need not be, synonymous with relativism. The spectre of standardless relativism arises, at base, from traditions, such as Rationalism or Idealism, which aspire to a universal, comprehensive and internally reconcilable moral or political monism. From the pluralist perspective, the fact of irreconcilability or of multiplicity does not necessarily infer relativism's indifferentiability or limitlessness, whereas from a monist perspective, irreconcilability is indicative of some sort of normative or analytical pathology.

2 That is, the normative dualism in New Zealand could be considered as consisting of

dual worldviews, that of broadly liberal derivation and that of broadly Maori derivation. Each of the member of the dual set would, in turn, consist of plural (neither claims to be internally monolithic) and, most likely, overlapping, normative subsets.

Value and Moral Pluralism

The animating bases of the pluralist discussion are the idea of value and moral pluralism. These ideas were, perhaps, most famously developed by the late Isaiah Berlin.' One of his insights was that even within a given cultural tradition, in his case, the western tradition, there will be competing and conflicting ideals. Berlin argues that there can be, and often are, ideals that are generally recognised as admirable but which, at base, are "incommensurable" or not rationally reconcilable.4 By incommensurable, Berlin tries to convey the idea of "incomparability." Vernacularly, we intuit incommensurability frequently when we say things such as "that's like comparing apples and oranges." That is, we are saying, there is no rational basis for comparing or ranking the things in question vis-a-vis one another. They are simply different. They cannot be reconciled into one or another. We may prefer one to the other, but not because of some universal and comprehensive rationale and we recognise that others may reasonably have an inverse preference.

One of Berlin's examples is to argue, as did Machiavelli, that the Greek ideal of the hero is irreconcilable with the Christian ideal of humility.' This is not to argue that one is better, or that one is worse, but that they cannot be rationally reconciled. Yet both ideals have been integrated into western morality. Attempts to reconcile the irreconcilable Greek and Judeo/Christian tradition date from well before Aquinas (although his was one of the more heroic efforts) but, according to Berlin, these were not only in vain, but ill conceived and misguided. The ideals are products of different ways of being in different situations, and they are not reconcilable. One is not rationally to be preferred over the other. We simply must make a "radical" choice.

Berlin's point is that some versions of the Good, that we can understand and can sympathise with are simply not commensurable or rationally

  1. Isaiah Berlin, who died in 1997, has been described as "the most original, the most lucid, the most erudite, and the most relentless enemy of the idea of totality in his age, which was an age of totality." Wieseltier, L "When a Sage dies, all are his Kin" [1 Dec. 97] New Republic 27. This is not to ignore or minimise the contributions of earlier pluralist "pragmatists" such as William James or John Dewey.
  2. Berlin, I "The Pursuit of the Ideal" in The Crooked Timber of Humanity (1990) 24; Gray, J. "Pluralism" in Isaiah Berlin (1996) 38-75.

5 See Berlin, ibid,8.

reconcilable with other versions of the Good.6 This does not mean we cannot criticise them, critique them, balance them, or choose between them, but we cannot rationally reconcile them or reasonably insist that others make the same choices between them that we have, nor can we deny that they are understandable ideals or versions of the Good.

Another, perhaps more familiar example of incommensurable goods may be the ideals of liberty and of equality. One is hard put to rationally compare these ideals, but, perhaps because of their respectively strong appeals, many have posited normative systems which attempt to reconcile them - with a result of balancing one against the other instead - some being more or less successful depending on one's normative viewpoint. Other examples may be justice and mercy, courage and prudence, and so on. One could argue that, for Berlin, acknowledging a necessary incommensurability of core categories of moral thought and values is fundamental to moral maturity.'

Notice, Berlin's pluralism is not an argument that there is no good just as it is not an argument that there is no evil. It is, rather, an argument that there is more than one conception of good, even within the same moral tradition, and that these goods may well be not only incommensurable, but irreconcilable. Likewise, there is a pluralism in evil, as there are different incommensurable evils. Recognising the incommensurability of some goods does not imply, in Berlin's view, that therefore good and evil are collapsed. Pragmatically, we know this. To return to the phrase, comparing apples and oranges, an aphorism embedded with the truth of the incommensurability of goods, we have no aphorisms such as "that's like comparing apples and rotten eggs" or the like. Those items may indeed be of different ilk, but, unlike the apples and oranges case, we don't consider that to be a case of incommensurable goods. We can and do make comparisons between apples and rotten eggs with no great difficulty. Likewise, we intuit the incommensurability of evils in phrases such as "between a rock and a hard place" or "navigating between Scylla and Charybdis." There is no system of rules which dictates for us which evil we ought to choose to encounter, we choose "our poison" as a matter of preference. We recognise others may choose a different poison. But we are not confused as to the status of the choice.'

6 Ibid, 12-13.
7 See Gray supra n4 at 65.
8 Ibid 62-65.

One might say that in Berlin's view, morality, political or otherwise, consists of an unavoidable balancing of incommensurable and irreconcilable goods, which often entails a sort of an unavoidable evil. We are faced with value choices every day, where to follow one ideal will be to deny another, because they are irreconcilable. There is no rational way to choose between them. This is not to say we cannot discern between moral and immoral choices, but that there will necessarily be incommensurable moral choices.

For the purposes of this part of the discussion, Berlin's basic insight was that even within one moral tradition, there will be conflicting, incommensurable, irreconcilable goals and duties, and that the attempt to achieve a universal unified non-contradictory conception of the good is not only futile and artificial but dangerous. The effort to enforce the right way necessarily entails complete denial of some core moral categories. The impulse to monism's comprehensiveness, from Plato's Republic to Hitler's Germany, is an impulse of which to be quite wary and is at base the impulse to totalitarianism.

Further, extending value and moral pluralism, Berlin believed that different cultures will necessarily construct different moralities, which may in turn be incommensurable9. Different circumstances and differing peoples will give rise to different "radical" choices as to the recognised (and incommensurate) Goods and values in a culture. As I understand Berlin, these differing moralities are reflective of a basic human good of self-construction of culture, or of a plurality of self constructions, which is a fundamental good in itself. Just as liberalism abhors heteronomous determination of individuals' plans and projects and decisions as to the good life, so pluralism abhors heteronomous determination of cultural ideals. As there is no perfect individual, there is no perfect society or morality, but there are a plurality of plausible and recognisable attempts at self-construction of each through balancing or radically choosing between incommensurables goods.

Berlin's version of moral pluralism can therefore plausibly be described as a normative conception. It is not an argument that there is no good just as it is not an argument that there is no evil. It is, rather, an argument that there is more than one conception of the good, even within the same moral tradition, and that these goods may well be

9 Ibid 71-75.

irreconcilable. Berlin, however, argues that we can understand and sympathise with these incommensurables, even if we make differing radical choices.

Juggling Plural Values and Moralities

This is so in two senses. Within a given conception of the good, people may value things differently. Thus, for example, within utilitarianism, while we may all agree that the greatest happiness of the greatest number is the ultimate goal, we may value different paths to happiness differently. This type of value pluralism may make our utilitarian moral calculations complex, but it is not insurmountable. A democratic system is compatible with such value pluralism, because we are all agreed that the greatest happiness to the greatest number is the overarching good to be accomplished. One person, one vote is commensurate with this conception of the good. There is a tradition that, in fact, democracy (perhaps moderated)'° itself is the answer to the balancing conundrums posed by the various pluralisms valued by and inherent to liberalism.

This general idea will be examined critically as the discussion proceeds, and is inextricably intertwined with a second sense in which the idea of pluralism in liberal democracy relates to value pluralism. There are, so to speak, at least four approaches to pluralism in democracy. The "democratic pluralist" believes that moral pluralism does not preclude consensus on a fair procedure for resolving conflicts between competing substantive views of the good. That is, s/he believes that it is reasonable for competing moral world views to demand to be given a fair hearing, but that it is unreasonable for a particular moral conception to demand to win. Further, the democratic pluralist believes that all reasonable moral world views will accede to these basic points: one, that a consensus on fair procedure is possible across the differing moral world views; and two, that it is reasonable to have a willingness to accept that one's view point may not, after fair hearing, prevail. More bluntly put, the democratic pluralist believes it unreasonable to refuse to lose on the merits or to refuse to adhere to the ideal of pluralism itself.

However, the democratic pluralist also realises that whilst reasonable

10 See, for example. Rawls, J Political Liberalism (1993).

conceptions of the good may accept that they may not externally prevail in areas of reasonable contention, there are certain intrusive outcomes which would be unacceptable to diverse conceptions of the good no matter how fair the procedure by which those outcomes were reached. Such internally unacceptable, but democratically arrived at, outcomes might be things like a requirement to worship on a particular day or in a particular way, or a requirement to wear certain clothing or sport a certain haircut. Therefore, to broaden its pluralist appeal, democratic pluralism simply removes certain areas from the proper arena of democratic debate, often through devices such as formal guarantees of group or individual rights or through formal limitations of governmental powers.

Other approaches to democracy and pluralism reject this division of substantive outcome from fair procedure. These approaches argue that procedure cannot, at a deep level, in a democracy, be divorced from substantive normative conceptions. The very idea of democracy is based on the normative concepts of the basic equality of moral worth between persons. This normative conception of a basic equality of worth is tied to the normative conception of a basic right, at least theoretically, to an equal voice and an equal influence on outcome by each person. These are nontrivial normative assumptions. To broaden the appeal of democratic pluralism, other nontrivial normative assumptions are often added which are only nominally related to fair procedure, and these are as mentioned above basic guarantees against unacceptable outcomes which could plausibly be reached under even the fairest democratic procedures. Such things as guarantees of religious freedom and guarantees of freedom of expression of a nonpolitical type are examples of devices to make democratic procedure have a broader appeal in a morally diverse community, but are things which do not relate to fair procedure itself. Instead, they are normative decisions to take some normative areas out of the contestable arena. The decisions as to what areas are within the contestable arena and what areas are not within that arena, are in themselves normative judgments because they are essentially decisions about what facets of individual or group identity are not reasonably externally contestable. However, groups or individuals may reasonably object to "losing" in the arena of contestation as to what are reasonably uncontestable core elements of identity construction. This is a nontrivial problem for democratic pluralists.

The approaches of those who deny that the problems associated with moral or normative pluralism can be neatly solved by democratic pluralism, i.e. who deny the plausibility of dividing the "fair" procedure of resolving moral or societal disputes from the substantive outcomes reached, vary according to their views about the possibility of overlapping consensus between varying moral world views. As Cohen puts it, there are "nihilists," who agree that substance and procedure are necessarily normatively tied, who accept the fact of moral pluralism, and who believe that therefore there can be no consensus on anything. Nihilism is, however, the luxury of those who can afford it. Mere mortals must trudge on searching to construct the least worst political system in which to attempt to juggle incommensurables.

There are "communitarians" who also agree that substance and procedure are not, at base, separable, and who find that moral pluralism is corrosive to both, and who therefore attempt to promote detailed moral consensus as attractive and to deny moral pluralism as a viable or laudable state of affairs. Communitarians therefore promote consensus as to moral detail as possible and as necessary for fruitful individual self-construction. Communitarians and pluralists are therefore in disagreement. Communitarianism as uniformity and pluralism are perhaps incommensurables, as meta-theories, but local communitarianism is not necessarily irreconcilable with meta-pluralism. It is the totalising tendencies of the quest for consensus in detail to which a pluralist would object.

Finally, there are the "democratic egalitarians," who also accept that procedure and substance are one, who accept the fact and desirability of moral pluralism and who believe that consensus may nonetheless be reached as to the basics of democratically resolving conflicts between world or moral views. This optimism faces some of the same deep objections as that of democratic pluralists.

If there can be no consensus as to a basic civil equality between individuals and to a basic right to an equal voice in outcome between all individuals of any group, the insistence on democratic procedures of the democratic egalitarians by definition excludes those world views/moralities which disagree with such assumptions and procedures as unreasonable. But, it is not obviously unreasonable to believe that older people, on the whole, have more experience or wisdom, and therefore should have more voice, than younger people. Nor is it

patently unreasonable to believe that persons with certain training and of certain backgrounds are more qualified to direct the affairs of government or of society, regardless of majority sentiment, than others lacking such training and such background. The list could go on. That is, it is not necessarily unreasonable to be civilly and socially illiberal. However, the imposition of the democratic norm prevents social groups which adhere to such beliefs from effectively being able to act or to order themselves on the basis of such normative beliefs. The belief in the deep incontestability of civil equality and the individual right to equal voice which underlies democratic procedure is the type of belief which cultures with fundamentally different views of fair and desirable procedure and with fundamentally different views of any given individual's elemental civil status term legal or political imperialism.

Before further considering this problem, I would like to draw another thread of pluralism into the discussion.

Legal Pluralism (In Fact)

This further thread of thought about pluralism is the idea of "legal pluralism." The study of (not the fact of) legal pluralism began in societies into which Europeans had imported and imposed their own legal system during the colonial era. These societies naturally already had systems of regulating human affairs and resolving disputes, and these systems did not, of course, instantaneously disappear with the introduction of the European systems. This phenomenon of (usually) incommensurably based and competing systems of regulating human affairs gave rise to conflicts (and still gives rise to conflicts), when the regulating systems demanded (or demand) different conduct in the same situation and from the same person. Likewise, the competing systems might require that any conflict be resolved in incompatible manners. " By universalising the concept of the (imported) "law" as the regulator of human affairs, which is itself a normative move, this overlap of authoritative, often conflicting, normative systems became known as "legal pluralism."12

  1. See generally, Jackson, M "The Maori and the Criminal Justice System, a New Perspective: He Whaipaanga Hou" (Wellington: Dept of Justice, 1988); Patterson, J "A Maori Concept of Collective Responsibility" in Justice Ethics and New Zealand Society (1992) 11.

12 There is no reason why the plural systems would necessarily be but two in number.

Legal pluralism at a subsidiary but superficial level is noncontroversial and a long standing phenomenon. In one sense, it can be viewed as merely another way of formulating a question of jurisdiction. For example, early in the British colonial experience in India, Hindu courts were to apply Hindu law to Hindus in circumscribed areas of familial and inheritance law, Moslem courts were to apply Moslem law to Moslems in the same circumscribed areas, and then "general" courts were to apply "general" law to the overall population in broader areas." Likewise, in the European tradition, various sets of law for various subject areas or various populations is not a radical concept. Medieval England and Europe was familiar with ecclesiastic courts for questions of family and inheritance for the overall population, and with some segments of the population (clerics) being subject to different rules in different courts than other segments of the population in areas such as crimes."

Conceptions of legal pluralism have expanded in the last twenty or thirty years to encompass a broad range of extra-state, authoritative, concurrent normative schemes to which people are commonly subject - traditions of family, rules of the place of employment, rules of the union, rules of the religious group, rules of the cultural group, rules of the ethnic group et cetera. This existing plethora of diverse authoritative communities in which individuals are embedded would seem to indicate that legal pluralism is, or ought to be, a non-controversial and non-problematic state of affairs, with which individuals, in at least liberal societies, are familiar and comfortably so. However, even this informal legal pluralism can be quite onerous for individuals within differing groups - the single father, the working mother, the Muslim who must pray five times a day, the penitent who must wear sackcloth and ashes - one understands the concern that living in a situation of unmitigated legal and regulatory pluralism may be, as communitarians suspect, a recipe for widespread personal anomie with its attached social discontents.

  1. Sinha, S "Legal Polycentricity" in Peterson, H & Zahle, H (eds) Legal Polycentricity: Consequences of Pluralism in Law (1995) 38-39.

14 See generally, Spiller, P A New Zealand Legal History (1995) 2-4.

Conundrums Continued

As fundamental legal and/or moral pluralisms move to a more extensive plane, they become more problematic for the population of individuals affected. When incommensurable competing normative systems both claim to be comprehensive and to be mandatory in nature to the affected individual, the resultant pluralism often becomes untenable for those who are expected to abide by both systems. As alluded, in the context of societies colonised by western liberal powers, the fundamental point of contention often comes down to varying and incompatible viewpoints of the moral and normative place/worth of the individual versus the moral and normative place/worth of the overall group(s) with which the individual is affiliated.

The western tradition of liberalism places the individual and individual autonomy at the centre of the normative debate, i.e. liberals promote the possibility of individual moral pluralism as fundamental to individual human flourishing. Within the western tradition, liberalism is criticised by communitarians, who consider the well-being of the community as the logical normative centre of the quest for individual human flourishing. The western and liberal focus on the individual is also challenged in a deeper way by those groups and societies, outside of that tradition, whose very existence and cultural essence is endangered by the imposition of the western individualistic focus and by the normative doctrines which accompany it.

The internal communitarian challenge to current conceptions of western liberalism is that current conceptions ignore that individuals generally only can exist within the context of groups and that, in general, individuals define themselves (and are defined) within that group context. By "atomising" the individual and focusing on the rights of the individual against the community, communitarians contend that the liberal ideal threatens to undermine the very cradle or existential net of the person it seeks to protect, the group. However, communitarianism is, in a sense, also basically concerned with the individual. The communitarian subscribes to the democratic ideal of fundamental civil equality of the individual and of his or her right to an equal voice in the affairs of the community, but believes that the focus of liberalism on protecting the dissenter is simply normatively misguided. In essence, liberalism focuses on the protection of the dissenter within the group as the best way to promote individual human

flourishing, and communitarianism focuses on supporting the consensus within the group as the best way to promote individual human flourishing. The basic goal of both appears to be individual human flourishing. The question of ultimate protection being accorded to the community over the individual is a question of means, not ends.

Communitarians ignore that there are, however, valid and weighty reasons for liberalism's focus on the individual or the dissenter.15 The coercive and oppressive possibilities of groups towards nonconforming individuals within are well-documented throughout history. The role of group cohesion and uniformity as an important factor in commission of grave evils vis-a-vis other groups or members of other groups is also well documented.16 Communitarians tend to gloss over these often and gruesomely illustrated sides of the equation.

The challenge to liberalism from outside the western tradition can run deeper than that of the communitarians, and be conceptualised as a question of ends in themselves. That is, is the ultimate end of individual human flourishing the only rational end or ultimate good of moralities which liberals can recognise as plausible or with which we can sympathise in Berlin-ian terms? Can Berlin's pluralism embrace normative frameworks which eschew individual flourishing as an end and at the same time avoid the slide to relativism whilst permitting the pluralistic liberal to keep their good conscience. Or, to borrow a line from Fish" , can the Berlin-ian pluralist be more than a "boutique" pluralist without becoming a relativist?

In line with the communitarian/liberal conflict outlined above, the coercive and oppressive power of dominant groups or dominant philosophies in a given society over non-dominant groups or philosophies is well documented historically. Combating a sort of such domination was the mythical germ from which liberalism's individualistic doctrines sprang. The legacy of colonialism and the plight of many indigenous peoples, as groups and as individuals, provide

  1. See generally, Eisenberg, "The Liberal-Communitarian Debate" in Reconstructing Political Pluralism (1995).
  2. See ibid; also Baumeister, R Evil: Inside Human Violence and Cruelty (1996) 169193.
  3. Fish, S "Boutique Multiculturalism or Why Liberals are Incapable of Thinking About Hate Speech" in The Anchor Essay Annual (1998) 31 first published in [1997] Critique.

examples of such domination and examples that liberalism in and of itself is no guarantee against individual oppression by the dominant group/philosophy. These examples, combined with the discussion of liberal democracy as a way of systemising pluralism lead us to confront the "liberal paradox." When the normative system and power of a dominant group threatens the very existence of a non-dominant group, questions of legal, cultural, ethnic, value or moral pluralism can be seen to become, almost literally, questions of basic survival. This is a common complaint of societies and groups with normative traditions other than those of western liberalism, yet who, for one reason or another, find themselves embedded within a western (often) liberal legal paradigm. The liberal focus on the individual cannot resolve this problem satisfactorily, because (aside from being the threat to the group in question) free construction of individual identity is a fundamental tenet of liberalism. Therefore, liberalism's failure to promote and to protect the existence of those social groups adhering to normative traditions to which liberal individualism is inimical results in what I term the liberal paradox. Individuals comprising those illiberal groups are denied their fundamental liberal right to construct their individual identity within their group's normative context by their group's non-liberal (but not necessarily bad) normative social ordering's inevitable inability to flourish in a liberal environment, hence the paradox. One has but to experience or to read of the destabilising and destructive effects on individuals of the importation of liberalism into social orders based on kin or family authority to understand the depth of the paradox.18

Likewise, the western communitarian paradigm also fails these groups, because, in an important sense, the western communitarian paradigm is still an individually focused and a democratic paradigm, it is not a paradigm protective of discrete groups qua groups, rather it is a paradigm protective of the democratic consensus of the overall community. This community consensus renders little comfort to members of the normative groups who find themselves in the numerical minority, either qua individual or qua group.

18 See Rwezaura, B et. al "Paring the Long Grass": Revealing and Reconceptualising

the African Family" (1995) 35 Jnl of Legal Pluralism 22; see also Achebe, C. Things Fall Apart (1959).

A Solution? Political Pluralism

There are invariably two claims that non-dominant groups are making in a situations of legal, ethnic, or cultural pluralism. Those are the right to exist as a distinct cultural group, and the right to effective participation in social-decision making. These can be termed minority19 rights. A further claim, which is similar, but not completely congruent, is the claim to a right to self-determination. This is a claim that goes beyond a claim for minority rights, and is, in essence, a rejection of minority or non-dominant status. Claims for the classic minority rights of existence qua distinct cultural group and the right to effective participation may be and have been addressed through a variety of devices: language rights, cumulative voting, proportional representation, and so on. The effectiveness of these solutions is debatable, but, as will be discussed, the closer the claimant group is, normatively speaking, to the dominant group, the more effective the devices appear to be. This is, especially in view of the upcoming discussion of trust and "Background," not surprising.

Unaddressed, the claims of minority rights and the separate claim to self determination may lead to legal or political fragmentation, in the sense that there is a complete break between the existent system and the claimant group in question, they may lead to naught, they may lead to repression, or they may even lead to some form of political or "official" legal pluralism in a deep sense. It is this last possibility, in view of the political aspirations sometimes attributed to Maori "separatists," that I want to consider in some depth.

In most situations, legal or political fragmentation comes with a very high social cost. Whilst undoubtably there are points at which the social cost of fragmentation is less than the social cost of remaining within the legal/political structure which is objectionable or inimical to the survival of the objecting group in question, the social costs of fragmentation are almost always high enough to make consideration of the viability of less socially costly alternatives at least worth while. However, when the normative basis of the dominant legal and political system is at odds, in a deep sense, with the normative basis of the

19 Using the term minority to signify a nondominant group admittedly does not cover

all the possibilities. For example, in the old South Africa and in the current Burundi, the nondominant group and the more numerous groups coincide(d).

objecting group, which may arguably be the case in the New Zealand context, the options which can honestly be said to address the concerns of the objecting group in a way acceptable both to the objectors and to the dominant group can be said to be relatively limited.

This is where the idea of political pluralism might be useful. Political pluralism as I use the term can be defined as a system within which there exists a plurality of political systems of differing groups within an overall united but "plural" system." A politically plural system is different from a simple federal system, where the political divisions are fundamentally physical and not normative. The federalism of, say, Australia or the United States, is not reflective of deep "political pluralism," but more of an important organisational pluralism.21 In a truly politically plural system, differing polities would have differing norms as to civil and political organisation and as to social ordering."

According to Eisenberg, the challenge of the politically plural society would be the protection of normatively diverse groups' rights to order their own affairs in their own way, while at the same time protecting

20 See generally Eisenberg, A Reconstructing Political Pluralism (1995).

  1. For example, the United States Constitution guarantees to each state a "republican" form of government. U.S.Const., Art. IV, section 4. While the guarantee clause is quite vague, it is indicative that state experimentation in governmental structures may be limited to the arena of organisational rather than deep political pluralism, in the absence of, perhaps, a very unlikely unanimous internal consent and a very unlikely reading of the clause.
  2. A politically plural system then would allow groups with divergent normative paradigms to coexist in a unitary territory, and would, perhaps, permit the physical overlapping of such self-regulating normatively diverse groups. Political pluralism would almost necessarily encompass organisational pluralism, in the sense of there being plural organisations ordering the affairs of normatively diverse groups. Organisational pluralism does not, however, necessarily infer the existence of either political or normative pluralism. Organisational pluralism, writ small, might be found within a normatively unified federal state, or might be found in a normatively diverse society, but on relatively shallow, albeit nontrivial level, such as, for example, the separate sovereignty and legal institutions of the first nations in the United States. See Rusco, E.R. "Civil Liberties Guarantees under Tribal Law: A Survey of Civil Rights Provisions in Tribal Constitutions" (1989) 14 Amer. Indian L.R. 273; Dane, P "The Maps of Sovereignty: A Meditation" (1991) 12 Cardozo L.R. 959; Vicenti, C.N. "The reemergence of tribal society and traditional justice systems" in "Indian Tribal Courts and Justice: A Symposium" [1995] 79:3 Judicature 134. Native American systems are subject to federal oversight in areas such as courts, due process, electoral processes, etc.)

The normative superficiality or depth of organisational pluralism would seem to depend on the extent of political pluralism underlying it. Organisational pluralism within a liberal society which is ordered within the normative paradigm of civic equality or democracy would not be reflective of a deep, but only a superficial, if any, political pluralism.

the individual in his or her relations within the group, that is, while not conceding to the group unlimited power over its members." This limitation is perhaps needed for (dominant) liberals to embrace political pluralism in good conscience, or, perhaps, is needed to guard against the real dangers of pluralism sliding into standardless relativism (again - maybe something necessary for liberals of good conscience to be able to support such an overall system - after all, the animus for this particular discussion is the unacceptable destructive nature of the "liberal paradox" to this liberal).

From a liberal perspective, a further challenge of political pluralism would be to achieve a sort of "complex equality" between individuals vis-a-vis their membership to a given normative group versus those who are members of another normative group.24 This might require differing rights for different groups to differing resources, depending on each group's normative paradigm and depending on its socio/ historical situation.

Of course, there would also be the challenge, in a politically plural society to regulate disputes between differing groups and between members of differing groups, but this challenge is not much different than the situation of existent federal political unions, and may, no doubt, be resolved in a similar, if not identical, fashion. For example, conflicts of laws doctrines may be developed to deal with questions of which normative group's norms will apply to a disputed situation, traditional jurisdictional doctrines may be expanded to encompass which court or dispute resolution system will decide a dispute regardless of the norms to be applied, and/or a special forum for intergroup conflicts may be developed. Intra-group disputes would be regulated according to the normative traditions of the group in question, given the below suggested condition that the (from a liberal perspective) overarching responsibility of a politically plural society would be to protect the individual's right of exit of a given normative group, and/or, depending on the degree of embeddedness of the individual within a given group, assure that each group had some internally acceptable mechanism for normative evolution and change. That is, a politically plural system would concern itself with the distribution of political power, but would not distribute

23 Eisenberg, supra n.20 ch 1.

  1. Walzer, M "Complex Equality" in Spheres of Justice: A Defense of Pluralism and Equality (1983) 3-30.

all power to groups qua groups nor would it make the atomistic individual its unique normative base."

Eisenberg also argues that a stable politically plural system should ideally consist of overlapping groups.26 That is, individuals within such a system should rarely, if ever, be members of only one group. She feels this is important for the healthy development of both the individuals and the groups. While some groups may normatively require exclusive membership, this should be the exception within a politically plural society and such claims should be carefully scrutinised, for exclusive group membership raises many spectres, not the least of which are polarisation vis-a-vis the "other" and the possibility of coercion vis-a-vis effectively isolated members. However, one would suppose that to protect the integrity of the deep pluralistic project, overlapping membership norms would need to be structured so that the liberal paradox would not be reconstituted in a more elaborate form.

Groups in a politically plural society would have the right to define their own membership criteria, their own political organisation, their own normative view of the good - with some caveats: perhaps those proposed by Eisenberg - a right to exit, a mechanism for normative evolution driven from within, and, generally, the possibility of overlapping or plural memberships.

An aspect of deep political pluralism that seems to be ignored, however, is that it may not only be normative liberalism which has conditions to impose on any experiment in deep political pluralism. Just as the liberal pluralist may need some to-be-negotiated structural conditions in place in order to proceed in good conscience and in good faith towards a deep political pluralism, so competing illiberal normative frameworks within the Berlin-ian universe of cultural pluralism may require some similar very unlimiting structural conditions in place in order to adhere in good conscience to a politically plural association with liberal polities. Liberals may require of illiberals some mechanism for exit; illiberals may require of liberals some basic inclusive social

25 Ibid 187-191.

  1. Ibid 13-25. Structured overlapping group membership can be seen in Maori society, through the device of multiple whanau and hapu affiliations — affiliations which are of substantive importance and provide exit alternatives to dissenters. See generally Metge, J New Growth from Old (1995).

network, or, perhaps, certain environmental constraints. Rather than the specifics of the what, the point is that deep political pluralism would logically entail some exchange of bilateral (or trilateral) minimal conditions both to allow the competing paradigms to associate in good conscience and to prevent a meta-liberal paradigm from, after all, becoming the meta-set in which the politically plural sets are embedded. The goal is to have a meta-pluralist set, and such a set as not simply a recast meta-liberal set.

A further challenge of political pluralism is to achieve this legitimation of varying group normative paradigms without inciting intergroup polarisation (one of the universal roots of evil)." This challenge is directly related to the dynamic between pluralism and trust, to which
I will turn after considering another variant of the multiplicity of meanings intended by the term "pluralism" relevant to the overall discussion.

Juridic Pluralism

Another possible solution to the dilemma of fundamental normative pluralism and the liberal paradox within a given national unit is the idea of juridic pluralism. This is an idea somewhat complementary to political pluralism, in the sense of integrating into a unitary politico/ legal system fundamentally differing sources of law or differing norms of behaviour.

Such pluralism comes in a number of guises - either, as in the Indian example above, different legal traditions being applied to differing groups by differing courts within an overarching unitary system, or, less dramatically, an integration of some of the basic ordering norms of the non-dominant groups into the ordering norms of the dominant group through a sort of culturally situated hermeneutics. Many doctrines of western law are amenable to the later approach. For example, the doctrine of reasonableness28 could and ought to incorporate the appropriate normative or cultural contexts - what is a reasonable mistake, what is reasonable care, what is a reasonable risk, a reasonable provocation, a reasonable fear, a reasonable search, reasonable force, etcetera. The idea of reasonableness pervades nearly

27 See Baumeister, supra n 16; Eisenberg, supra n20.
28 See Sinha, S. supra n 13 at 51.

all facets of western law. As it is, cultural defences based on the idea of culturally specific reasonableness are often met with scepticism and hostility.29 The limits of reasonableness, or similar incorporation of cultural contexts into juridic doctrines might be delimited by considerations similar to those relative to political pluralism. Juridic pluralism might also be achieved to a certain extent by simply requiring diverse jury pools to be available to assure a true jury of peers and a common normative context in determining the meaning of such broad and malleable terms as "reasonable."

The solution of differing courts applying differing standards to groups operating with arguable unique norms peculiar to a particular context is also something at which western systems are adept. In the United States, for example, there are, amongst others, juvenile courts, admiralty courts, and tribal courts, each of which has a unique jurisprudence that applies to a unique group.

Whilst some argue that juridic pluralism, however well intended, does not truly address the desire of a normatively dissenting group to order its own affairs on its own terms, at least not in the sense that political pluralism does, one of the attractions of the idea is that it has a pragmatic history. Juridic pluralism has been instituted in a variety of permutations and in a variety of settings without undue consequence to the civil and social fabric of the polity in question. For those either liberals or non-liberals of a Burkean ilk, this is not a minor consideration, especially when considering something as "radical", however morally compelled, as deep political pluralism.

One is always aware that the immediate polemical response to considering either political or juridic pluralism as possible solutions to the "liberal paradox" is the cry "apartheid!" But of course this concern becomes rather suspect when those decrying "apartheid" are invariably drawn from the present essentially normatively monist group which is in power. Scepticism also heightens when one considers that the "apartheid" concern resembles a normative paternalism which operates to deny the validity of the aspirations of groups with norms incommensurable and irreconcilable with liberalism for some forum within which to determine their own evolution and destiny. As is

29 See Detmold, M.J "Provocation to Murder: Sovereignty and Multiculture" (1997)

19 Sydney L.R. 5.

argued about racism,30 perhaps "apartheid" is only "apartheid" when it is an enforced eviction and banishment from the existing civil society, rather than a thoughtfully seeking of normative space. As discussed supra, political pluralism or juridic pluralism may be less costly, in human and social terms, than doing nothing and risking social fracture or dissolution. The concerns of apartheid, social fragmentation, and group polarisation give rise to consideration of some fundamental themes often underlying those concerns: "trust" or a failure of "trust."



Much has been written in the last few years about the social good of "trust," most famously perhaps by Fukuyama.31 The purpose of this section is to provide the reader with a thumbnail sketch of the "trust" paradigm, some elucidation and elaborations of the paradigm, and to introduce some problems associated with "trust."

In essence, Fukuyama pointed out that some societies seem to function in a more materially productive way than others, and he suggested a possible explanation. He posited that in high "trust" societies, productive activities were facilitated more than in low "trust" societies, because the fact of "trust" allowed people to interact in the economically productive (risky) activities with a large segment of their society with little or no monitoring costs. He argued that in low "trust" societies, interactions and opportunities are limited by the felt necessity to "trust" only within the circle of kin or family. Thus, one does not hire talent, one makes do with the best the family has to offer, one incurs high monitoring costs, foregoes opportunities, all due to an ethos of family based rather than a broadly based social "trust." According to Fukuyama, whether a society is one of high "trust" or low "trust" depends on the sociability and socialisation within that society.

Just as in the economic realm, "trust", as conceived by Fukuyama, is also important in the political realm. Breakdowns in "trust" of political

30 See Spoonley, P "Racism" in Racism and Ethnicity (2nd ed. 1993) 4.

  1. Fukuyama, F Trust: The Social Virtues and the Creation of Prosperity (1995). This section will refer extensively to the basic ideas in this work.

and government institutions lead to perceptions of injustice, cronyism, civil wars and the like. Thus, one can surmise that the dynamic between normative pluralism and "trust" ought not to be minimised

The idea of social "trust" has been further refined, in ways that are important to this discussion. Seligman" parses Fukuyama's discussion by differentiating "trust" from, among other things, "confidence." He points out that Fukuyama conflates trust and confidence. According to Seligman, we "trust" when we are in an interaction where we actually do not know what the other will do nor do we think that we know what they will do. We then "trust" that whatever they do, they will not do something inimical to our status as a morally autonomous being, worthy of moral consideration. However, in most situations we do not need to "trust." In most situations "confidence" suffices. According to Seligman, much of what Fukuyama considers "trust" is in fact "confidence." We have "confidence" when we "know" what the other is going to do, i.e. when we know the role of the other and that the other will fulfil that role according to our expectations. High levels of "confidence" are present when roles are few and transparent (and thus sanction for failure to fulfil role expectation is reliable and effective), or when socialisation is broadly civil and the norms underlying that socialisation are uniform. Thus, we may have "confidence" that people will play by "the (civil) rules" in situations of role simplicity and transparency, or in situations of more role complexity where uniform norms are broadly shared. Thus, according to Seligman, Japan, one of Fukuyama's high "trust" societies, is actually a high "confidence" (some writers refer to "confidence" as "thick trust"" ) society.

"Trust," on the other hand, arises in situations where, due to role complexity and normative diversity, the potential conduct of the "other" is opaque. It is when we do not "know" what the other will do, but deal with them in a "trusting" fashion anyway, that we "trust." According to Seligman, trust is unlike confidence. "Trust" is a leap of faith in which we are recognising that the "other" does not necessarily share all of or even most of our norms, our role interpretations, our viewpoints, but where we nonetheless "trust" them, without our

  1. Seligman, A The Problem of Trust (1997). The discussion henceforth will refer to Seligman's critique of Fukuyama's idea and to Seligman's refinement of the analysis of trust and confidence, unless otherwise noted.

33 See Fort, T "Trust and Law's Facilitating Role" (1996) 34 Am.Bus.L.J. 205, 206.

monitoring, to act in some way not inimical to our interests. In his view, "trust" properly so called is at the heart of liberalism." Further, this liberal "trust" is a fragile, rather than robust, phenomenon, dependant on the strong socialisation and internal integration of one highly abstract and rationalised tenet as a fundamental way of being to a, by design, widely normatively diverse population . Finally, Seligman notes that situations of true "trust" are relatively circumscribed. In a "trust" situation, there is an opacity arising usually at the boundaries of the other's conduct. By contrast, in a "confidence" situation, for some reason, perhaps a transparent role construction, perhaps the existence of strict social conformity to role expectations, or perhaps the knowledge of effective monitoring structures, there is no self-consciously accepted and acknowledged free agency of the other to act in an a priori unknowable manner. "Trust" is an acknowledgment of the propriety and opacity of the other's independent agency in a way that "confidence" is not.

Seligman views "trust" as being at the core of liberalism because of liberalism's dedication to pluralistic individualism. Pluralistic individualism denotes liberalism's dedication to each individual developing his or her own view of the good life and his or her own morality (or, as Berlin would put it, his or her own balance of incommensurable but recognisable values). In short, liberalism, as an ideology, is dedicated to the promotion of individual free and diverse agency, or autonomy." This is where "trust" comes in - the norm of the free agency or the independent moral construction of the individual is dependent on each individual extending the social "good" of self construction to others. This norm of valuing each individual's self construction must be shared and broadly socialised for liberal society to flourish. Inherent in that norm is the element of "trusting" others not to "self-construct" their free agency in such ways that fail to respect our own plans and projects. Liberal society extends the possibility of extensive normative pluralism to its members in exchange for an internalised commitment that one's self constructed morality will not be inimical to the interests of others (and their self constructed morality). It is on this deep level that "trust" is intrinsic to liberalism.

34 This idea will be explained infra.

  1. The Kantian proponent of autonomy would arguably not find incommensurability of moral goods attractive, because of the resultant necessity of radical rather than rational choice.

The "institutionalised" opacity of the operative norms of the "other" requires a deep "institutionalised" trust. If one so understands "trust", one understands its fragility and its relative rarity as an operative cognitive foreground, rather than background, construct.

Yet it is on this deep trust that everyday liberal foreground "confidence" in role fulfilment in some satisfactory manner is ultimately based. The more opacity about the conduct of the "other" in the particular role, the more the background "trust" underlying our "confidence" is called to the fore. Seligman surmises that as liberal societies become increasingly operatively rather than theoretically or nominally normatively diverse and complex, this core "trust" or "leap of faith" based on a shared abstract socialisation will be seen as more and more untenable and people will search out new, perhaps more ascriptive, bases on which to place both their "trust" and "confidence." This analysis of the fragility of the norm of "trust" inherent in and necessary to liberal ideology is sobering. If the pluralism that liberalism fosters is inimical not only to illiberal normative paradigms, but to liberalism itself, what then of the liberal paradox?

I suggest that the social goods of "confidence" and "trust" are highly relevant to the enterprises of political or juridic pluralism. "Trust" is relevant, I think, in the deep "leap of faith" sense underlying the liberal enterprise. This is so in the sense of the necessity in truly deep political pluralism of accepting the opacity of how the aspirant "group" members of the political plural set may organise their affairs and "trusting" that that organisation will not be inimical to the affairs and organisation of affairs of other "group" or individual members of the plural set. "Confidence" is relevant in that, in the absence of "trust", or in the absence of the capacity to extend the privilege of normative self determination (that is, opacity) to the aspirant group, in what manner might inter group "confidence" be promoted or be maintained? How might "confidence" be encouraged to the point where intergroup "trust" becomes possible? Is insisting on "confidence" as a precondition to extending "trust" so expensive that political pluralism can never overcome the threshold of viability? One must remember the fragility of "trust" and that liberalism's "trust" in individual self-construction did not "grow like Topsy" but emerged, with not a little cultivation, out of a relatively gradual evolution of the very much confidence based feudal system.

Theory of the Background

In considering these questions of the promotion of "trust" and "confidence," Heidegger's theory of the Background may be helpful. As mentioned above, the social goods of "confidence" and "trust" are both highly dependant on the sociability and socialisation of the members of the society in question. How does one socialise individuals into liberals or, as in Seligman's analysis of confidence, into a broadly based and extended uniform social morality? How does one learn to be Canadian? How does one learn to be Japanese? How does one learn to be a liberal? A communitarian? How does one learn to be a political, or a juridic, pluralist? Would these be good things to be?

I believe that Heidegger's theory of the Background is very cogent in considering pluralism and social "confidence" and "trust" because of the very difficulty of "teaching" these concepts in a formalised intellectual way. According to Heidegger, social practice precedes theory and precedes intellectual understanding. Thus, one is born into and assimilates through interaction and participation" shared understandings of what matters and what is to be handed down or passed on. That is, that our practical "tacit" knowledge is epistemologically prior to theories and intellectual understandings. According to Leiter, Heidegger is claiming that knowledge we can organise in such ways as to formally transmit it is "parasitic" on our practical unconsciously learned way of coping or acting."

Heidegger further posits that this "tacit knowledge" that makes everyday action possible is "a noncognitive foundation to intelligibility, a type of intentionality that is neither conscious nor propositional in form."" The idea of tacit or implicit knowledge being nonpropositional in form means that it does not lend itself to reduction or translation into clearly defined rules to govern behaviour. At the very best, the rules would be "soft," or reliant on the implicit or tacit knowledge of the transmissee to do useful work. Leiter gives the example of the "rules" governing a loving relationship. Those

  1. See Postema, G "Protestant" Interpretation and Social Practices" (1987) 6 Law & Phil 283, 313.
  2. Leiter, B "Heidegger and the Theory of Adjudication" (1996) 106 Yale Law Journal 253, 262-271.

38 Ibid, 268.

"rules" would be culturally specific, implicit, and so reliant on unconsciously absorbed knowledge that we could never adequately formalise them (New Age books aside). Likewise for physical objects, our intellectual thoughts about them stem from our practical and prior interactions with them. A pen is for writing. In a culture with no writing, a pen would not be seen as an object for writing, i.e. would not be a pen, but would be something else.

Leiter offers an invitation to the reader to produce a complete propositional guide to some event so simple as dressing as an example of the broad noncognitve nature of the "Background." Getting dressed involves, amoung myriad other decisions, deciding, if a woman, whether pants and then which pants, which immediately literally explodes the guide into a vast arena of tacit practical situational knowledge. Complex intentional and culturally appropriate behaviour we do with practical thoughtless ease, we find too complex to break into formal cognitive propositions.

I offer what are, perhaps, for me, better examples. One example is the plight of a foreigner in a different culture, even a foreign culture with a shared language. Despite all instruction, the stranger will make faux pas and will come up against incomprehensible and inexplicable situations. Some years later, that same person will have a more complete set of tacit knowledge, will avoid most faux pas, but will not be able exactly to explain how they know what they now surely know. Nor will they be able exactly to explain what it is that they now surely know, but they surely know "it." It will "feel" and it will be "right."

Another possible example may be when one learns another language. When one learns another language, one learns words or phrases conveying certain ideas and conceptions that cannot be properly translated into the prior language, and one cannot even, through prose, completely explain those ideas in the prior language. How then did one learn them? One does. Perhaps it is through this very process of tacit assimilation of prior and non-cognitive meaning from an overall context to which Heidegger is referring as a fundamental basis of knowing anything.

Without a prior practical basis or "Background" on which to base our propositional and theoretical knowledge, we are left knowingless. Another, perhaps more dubious, way to express this is the analysis of

the "natural" - French are "naturally" French, although we know that had the same persons been raised as Italians, they would "naturally" be Italian and they would have "naturally" different pools of tacit non-cognitive knowledge which they would be hard put to explain.

The Background, Trust, and Pluralism

If Heidegger's posit is valid, and I think at some level it almost certainly is, what does that say for explorations in pluralism? If "confidence" and "trust" are important social goods which are connected with economic and civic prosperity,39 one would be rash not to consider the importance of maintaining at least whatever overall levels of "confidence" and "trust" exist in a stable politically or juridic monist system when reflecting on the plausibility of political or juridic pluralism. For, as discussed, high "trust" or high "confidence" systems have been argued to be based on some, however limited, universal normative consensus - either the consensus to share an extensively uniform morality, or the consensus to enable one another to have broadly varying moralities. Either is based on a species of universalism. Can the respect of individual moral plurality underlying liberalism or the respect of the value of a uniform morality and identity underlying consensus or communitarian based societies be successfully transformed into a respect for the values of political or juridic pluralism? Liberals don't tend to "trust" non-liberal 40 groups as basic social building blocks, and consensus based systems would seem to take a dim view of promoting difference. And, if one ascribes to Heidegger's theory of the "Background", becoming a population of functional political or juridic pluralists is not something one does, or perhaps, even explains how to do, through propositional knowledge and theory.

One sees from current events stark confirmation of the importance of attention to social "background" knowledge and ways of being in designing institutions of governance. The "Yugoslav" population did not become functioning practical tacit "Yugoslays" by declaration

  1. By civic prosperity, I mean a state of a public's confidence and trust in their governmental system and government agents to be acting in that public's interest, however conceived.
  2. Note that if the group(s) in question adhered to liberalism, there would be no need of deep political pluralism, traditional federalism would suffice for any inclinations to the group's "self-determination".

or by Tito's will power. Rather, each group appears to have retained its own "background" of ethnic identity which asserted itself as soon as compulsion was gone.41 Likewise, the component republics of the USSR did not become tacit Soviets by fiat, but retained their own "backgrounds" of ethnic or national identity which again asserted themselves once compulsion was removed.42 Thus, whilst, according to Heidigger, one does not consciously gain one's "background" ways of knowing and being, it appears that it is also quite a task for that "background" to be consciously, albeit non-consensually, modified or erased.

Considering the prior two points together, any move to political or juridic pluralism would have to be consensual, genuinely valued, and probably internally animated by the population moving in that direction in order firstly not to be destructive of existent social goods and secondly to successfully modify the relevant "background." These two things are inextricably intertwined. A deep appreciation of the liberal paradox by liberals may be motive enough for conscientious liberals to consider deep political or juridic pluralism in good faith or as morally compelled. Adherents of non-liberal groups embedded in liberal society would appear to have a "tacit" appreciation of the liberal paradox, but values of "political pluralism" may be no more incorporated into their background than into that of any other groups. This may be true despite, or perhaps, because of, those groups' lived reality of a flawed reflection of deep political pluralism —fundamentally flawed because of the coercive imposition of that experience.

Without localised lived and consensual experience, Heidegger's theory of the "background" cautions that theorising about what ought to come about if this or that formal social institution were changed is, perhaps at best, an exercise in hubris. Nonetheless, examining real world examples of each an attempted political pluralism and an ambitious juridic pluralism may illuminate: a) whether such things can be instituted without violence to public trust and confidence in one another's proper fulfilling of agreed upon (group and individual) roles;

  1. See generally, Varady, T "Minorities, Majorities, Law and Ethnicity: Reflections of the Yugoslav Case" (1997) 19 Human Rights Quarterly 9.
  2. Similarly, perhaps, one sees the risks of imposed topdown, rather than participatorily evolved, monist solutions to governing an importantly divided population in the Rwanda/Burundi situations.

b) overall trust and confidence in the propriety of the plural institutions themselves; and c) the achievement of the aspirations animating the desire for these pluralisms in the first place. All three would appear to be intimately tied to a successful and fruitful modification of the "background", or of our "natural" ways of being, knowing, and interacting.

Sudan presents an example of Juridic Pluralism in operation to which we might look for enlightenment as to aspects of that "background" in action. In Sudan, a person carries "their" law with them in many circumstances.43 A person's "personal law" derives from their religion, their (sometimes ethnic) community, or their national origin.44 For example, civil courts in Sudan are directed in manners of succession, inheritance, wills, legacies, gifts, marriages, divorces, family relations and so on, "any custom applicable to parties," or, if the parties are Muslim, Sharia law.45 "Any custom" applicable to the parties can be derived from the customary law of those ethnic communities upon whom the right to administer their own justice has been conferred by legislation, or in cases of marriage, be extended to the practices of the local communities of non-Muslim religions recognised by statute (Jewish, Greek Orthodox, Coptic Christians, Roman Catholics, Armenian Catholics, etc.). If a person falls outside any of the recognised groups, their "personal law" is provided by statute and, in the gaps, "by principles of justice and equity."46 The immediate questions that leap to any lawyer's mind is how conflicts of laws are resolved, and whether such a system could be workable.

The answer to the first question is that conflicts of "personal laws" are resolved by the similar sorts of balancing interests familiar from conflict of law cases. What personal law applied to whom, when and where. For example, if a married person converts to another religion,

  1. See Tier, A "Conflict of Laws and Legal Pluralism in the Sudan" (1990) 39 International and Comparative Law Journal 611.

44 Ibid 612.
45 Ibid 613.
46 Ibid 614.

the law of the new religion covers their conduct and affairs after conversion, while the law of the old religion may be invoked by the converting party to end the marriage should the conversion lead to conduct which is unacceptable according to the law of the old religion, but acceptable according to the new.47 Inheritance rights will be extended to any child of a marriage who was legitimate under the personal law of the parents at the time of that child's birth, in accordance with that law to the extent possible." Examples go on, but the point is that a workable and working conflicts jurisprudence has arisen to deal with conflicts of "personal law."

Because this juridic pluralism is limited to circumscribed areas of traditionally "private" interest, very similar to the areas of jurisdiction of the old "ecclesiastic" courts in England, one could surmise that its impact on any existent public trust and confidence in governmental institutions and in the role playing acuity of the members of the larger community is minimal. However, it does show a willingness on the part of the larger community to foster, or at least to officially tolerate, the intimate ways of social ordering of the sub-groupings found within it. Even in this seemingly very juridically plural system, one notices, however, that areas of civil law operating on the traditionally "public" side of the public/private divide are not personally plural, i.e. contract, tort, and procedural issues are governed by a uniform law.49 This may be a bow to the outer limits of an economically functional juridic pluralism, as the tradition of a uniform commercial law applying to persons of various legal traditions extends back into Roman times. Criminal law, on the other hand, could conceivably be personalised with Sharia law applying to Muslims and statutory law applying to others. Such would not be foreign to or do violence to the tacit "background" of juridic pluralism within which the citizenry and the courts of Sudan operate with ease.

In the consideration of our three posed questions, the answers to a) and b) would appear to be affirmative, and the answer to c) that it depends. One cannot ignore that there is and has been a long running civil war in Sudan which the presence of a flourishing juridic pluralism in circumscribed fields of law did not seem to avoid. The sort of

47 Ibid 621-22.

48 See generally ibid 631.

49 Ibid 615.

"self-ordering" sought by the southern Sudanese was evidently deeper than that made feasible by this variant of juridic pluralism. Being able to marry, to relate in your family, and to die, completely in accord with your group's formally unique norms seems, from a legal monist perspective, to be quite an extensive concession to those advocating institutional valuing of and facilitation of plural normative groupings (embedded in a larger society) maintaining and developing their own ways of being. From the embedded group's perspective though, such acknowledgment of "private" diversity might look quite differently and seem very much in the keeping of the legal monist (and especially the liberal) tradition. From that perspective it could appear that what is "public" (read, important in terms of ordering public power) is uniformly governed by the norms of the majority (read, monist law), and what is private (read, unimportant in terms of ordering public power) is left to the norms of the dissenting groups. Thus, one could view Sudan's ambitious juridic pluralism as a mere extension or variant of liberalism's public/private tradition rather than any sort of recognition of "deep" pluralism at all.

Belgium and (Nascent?) Political Pluralism

The population of Belgium comprises two main linguistic and cultural groups, the Flemish speaking Flemings and the French50° speaking Walloons. The two groups are united by a common Roman Catholic heritage, but have deeply differing takes on Catholicism. The Flemings are generally conservative and clericist, while the Walloons embrace socialism and anti-clericalism. Thus, the two groups are at ideological, cultural, and linguistic odds.51' However, they appear to be united in their desire to maintain their respectively unique cultural and linguistic identities, which, in turn, animates their common commitment to a form of nascent political pluralism. The alternatives are for one group to dominate the other or for each group to risk being absorbed and erased by their larger linguistically similar neighbours. So perhaps it is not surprising that these groups have gone to great pains to create,

50 Wallonia is a separate dialect of the French language "family."

  1. Note however, that while on opposite ends of the liberal "spectrum," they are normatively similar in their commitment to civil equality and democracy. Thus, one would expect that deep political pluralism might require at least the same, if not more, complexity than the system evolving in Belgium.

step by step, a bifurcated system aimed at preserving the unique identity of each."

The system has evolved over time from Belgium's modern independence in 1839. By 1898 the country was officially bilingual. In 1914 the university system was reformed so that tertiary education was available in either language. Before then, French had been the language of instruction. In the 1930s, a formal system of separate linguistic administration and primary education was formalised, and tertiary education in Flemish guaranteed. Each linguistic region was guaranteed administration in its own language of centrally determined policies. Conventions of ministerial positions, excepting the Prime Minister, being evenly divided between members of the two linguistic groups had developed well before linguistic parity in government was formalised in 1973. Moves from separate linguistic administration of centralised policies to a measure of actual autonomy began in the 1970s and culminated in 1980s. It is the system instituted in 1980s which I wish to examine as, perhaps, nascent political pluralism.

Before examining the system in detail, I draw the reader's attention to the evolution of reforms over time preceding the constitutional reforms of the 1980s. Considering the breadth of autonomy extended to each group in the system in the reforms to be discussed, and the elaborate tying of those areas of authority which remained centralised to the guaranteed consent of each linguistic group, one wonders whether this depth of, essentially, intergroup "trust" could have developed without the progressive evolution of the national "background" which historically preceded these reforms. 53 The current national "background" in Belgium would appear to encompass a well developed and nuanced tacit as well as formalised conception of what is required

  1. One can see similarities in the situation facing the Flemish and the Walloons and in the globalising situation facing New Zealand. The question they faced, as the questions facing New Zealand, was whether their unique identities and ways of being were worth being protected, and if so, how and at what cost?
  2. For example, in the 1960s, each of two bilingual universities were restructured into two monolingual institutions, one Flemish, one French. In one of the restructurings, the library of the bilingual parent institution was allocated between the two new institutions through the device of books with even catalogue numbers going to one new institution and books with odd catalogue numbers going to the other new institution. Such elan is suggestive of a sophisticated "background" finesse. Swan, G "Quasi Federal Reforms in Belgium" (1988) 2 Emory Jnl of Intl Dispute Res. 359, 364 n.42.

for a cultural group within a larger polity to be empowered to develop and maintain its own way of being, or its own "background." The formalised conception evidenced in the reforms of the 1980s may never have arisen without the practical experience of the two groups tacitly recognising the validity of each other's aspirations and "naturally" feeling their way towards a formal and propositional interpretation of the structure being developed.

The reforms of the 1980s formally recognised three separate regions in Belgium. The Walloon speaking area, the Flemish speaking area, and Brussels, which is formally bilingual. The overall population is approximately 60% Flemish and 40% Walloon. More than 10% of the total population lives in bilingual Brussels. There is also a very small German speaking population to which is extended a much more limited self determination than that extended to the two major groups and to which is extended the courtesy of required formal consultation about linguistic, educational, and cultural matters.54

In 1980 each of the mono-linguistic" geographical areas was allowed a regional assembly and regional executive, and these organisations were allotted approximately 10%t of the national budget. The areas of authority extended to the regional assemblies encompassed an array of socioeconomic matters, including "industrial and urban planning, environmental policy, housing policy, areas of energy policy, and employment policy."" Council decrees in their areas of authority have the standing of law. National legislation concerning the regional councils and their areas of authority is required by the 1980 Constitution to be passed by overall two thirds majorities AND by concurrent majorities of each language group in each of the Houses of the bicameral parliament.57 Thus, any expansion or contraction of the autonomy granted therein would also seem to require that broad consensus which would arguably be dependent on a concurrent further evolution of "background" or practical knowing as to what would be workable.

  1. Ibid 373, quoting Fitzmaurice, J The Polaccas of Belgium: Crisis and Compromise in a Plural Society (1983) 112.
  2. Although people of one language group may in fact live in the geographical area of another, all services with in a linguistic region are in the language of the region. Each region maintains a "scrupulous" monolingualism and monoculturism. See Swan, supra n.54 at 363-664.

56 Ibid 366-67.
57 Belgian Const. art. 107 quater

More uniquely, the Belgium reforms of the 1980s also provided for "Community Councils." The authority of community councils is not confined by geography, but by linguistic community. The areas of authority of community councils are "cultural matters, education [as limited by national law], academic requirements, the organisation of teaching, diplomas, salaries, subsidies and norms of student population; cooperation between the linguistic communities and international cultural cooperation."58 As with the Regional authorities outlined above, the 1980 Constitution required a two thirds overall and concurrent linguistic majorities in the two Houses of Parliament to pass legislation concerning the community councils and their areas of authority.59 The two community councils' authority extends to their linguistic community in their linguistic region, and to their linguistic community in officially bilingual Brussels. The areas in which the community councils are component to regulate go well beyond the traditionally "private" areas that the juridic pluralism of Sudan fosters as normatively plural. Those areas include language, culture, museums, scientific institutes, libraries, radio, television, youth policy, leisure, sport, tourism, adult education, arts' training, worker retraining, scientific research, applied scientific policy, broad areas of health policy (but not all), welfare policy (but basic national norms set a "basement"), and international treaties and agreement in the areas of the community councils' competence (culture and "personalisable" manners - eg health and welfare). By 1982, both regional and community councils were extended certain powers of taxation and borrowing, in addition to fund allocation from the national government.60

Interestingly, there is much, seemingly by design, ambiguity as to the exact extent of authority of the regional and community councils, vis-a-vis the central government. Education seemingly comes under the authority of both, as does language policy.61

The constitutional reforms seem to have done this almost by design, and provided for a constitutional court of arbitration to settle conflicting claims of authority, and conflicts arising from conflicting laws issued

58 See Swan, supra n.53 at 369.
59 Belgian Const. art. 59 bis, section 1.

  1. Swan, supra n.53 at 372, citing Fitzmaurice, J The Politics of Belgium: Crisis and Compromise in a Plural Society (1983) 132.

61 See ibid, 369.

in areas over-lapping authority.62 This constitutional Court of Arbitration is structured to be composed half of jurists and half of politicians. Arguably, considering the structure, this institution is designed to enable evolving "background" understandings of the Belgium's polity's way of being or way of ordering inter-cultural group autonomy to be respected rather than to decide disputes on formal propositional bases only.

The actual internal structure of the regional and community councils is not strictly provided for by the reforms of the 1980s. There is provision that they have separate areas of authority and that they be composed of elected members, but the Flemish region has one elected overlapping body serving both functions and the Walloon region has created two completely separate bodies.63 This is some evidence of the depth of the level of political autonomy the 1980 reforms envisioned fostering. Further evidence of the recognition of the delicacy and the importance of maintaining a national solidarity while proceeding along the path of progressively more cultural autonomy is Belgium's "alarm bell." This is a constitutional provision that motions, giving reasons, submitted by three-quarters of the members of parliament a given linguistic group (party affiliation being irrelevant for these purposes), claiming that a proposed law before parliament risks seriously impairing relations between the linguistic communities suspend the parliamentary process.64 The proposed law is referred to the Council of Ministers (divided equally along linguistic lines, remember) which considers the matter, gives an opinion or proposed amendments within thirty days and returns the matter to parliament for further consideration. The "alarm bell" may only be rung once by a language group vis-a-vis a piece of proposed legislation.65

As a measure of the costs and benefits of these institutional and structural changes designed to foster and to protect the cultural autonomy of the two major linguistic groups, one can consider the complexity of the governing structure. Things such as: overlapping but separate institutions to regulate both geographically separated and geographically mixed (Brussels) by linguistically separated

62 Ibid 375-76.
63 Ibid 374-75.
64 Belgian Const. art. 38 bis.
65 Ibid.

communities; duplication of institutions for education, health and welfare in the shared areas; national legislation being derailed by "alarm bells"; the potential for at least five-way conflicts of laws and authority; a constitutional arbitration of those conflicts by courts composed of (declared) politicians as well as judges, with only the broadest and vaguest of textual guidance. An Austinian nightmare! An unmitigated horror story for the current ascendancy of the ideology that "economic efficiency" is the standard for good government structures.

Of course, economic efficiency really is about paying the appropriate price for something, and, some things are expensive. The question is not how cheaply can a nation be governed in any way, but how cheaply may a nation be governed in the way that best promotes the ideals it holds dear. Belgium's devolved governmental structure is monetarily more expensive than a unitary one would be on, perhaps, a superficial level.66 But if one considers the not easily monetised value assigned to cultural autonomy by the linguistic groups of Belgium, this complex government may be very good value. One very strong indicator that in Belgium, anyway, people self-consciously value things other than a bare bones of bargain basement sufficient only to promote the value of least cost maintenance of public order, and find the expense and complexity of their system worth the resultant increases in cultural autonomy, is that in 1993 the Belgian Constitution was modestly, but seemingly symbolically, modified.67 The 1993 modification seems to change the conception of the regional and community council structure from one of limited specified authority devolved from the central government to the councils, to one of generalised authority being lodged with the councils and the centralised government being declared to be of limited authority, authorised to act only in areas expressly delegated to it by the constitution."

Such a change could be seen as evidence that, with experience and time for cultural and national "backgrounds" to adjust, the path of Belgium towards a cultural and even a possible nascent political pluralism is one which, for them, seems to have maintained "trust" and "confidence" in public institutions and which seems to have

66 See Swan, supra n.53 at 380.

67 Maddex, R Constitutions of the World (1995) 22.

68 Ibid.

promoted the possibility of inter-group "trust" through measures fostering inter-group "confidence" (alarm bells, super majorities and concurrent linguistic majorities, at least some authority, increasing over time, as to matters core to the group's continued linguistic identity and cultural prosperity, increasing discretion over the form of structures administering to the group, etc.).

Implications for New Zealand

A fundamental issue facing New Zealand at the present time is that of social and civil identity. Internal demands by the Maori peoples for institutional structures facilitating cultural and normative self definition and survival qua Maori, external homogenising influences of economic and cultural globalisation, and increasing internal normative and ethnic diversity are pressing upon New Zealand's unique "background." In a situation of pluralism in fact, it may be helpful to thoroughly consider normative conceptions of pluralism, the conundrums inherent in pluralism, and possible resolutions to those pluralist conundrums. I have attempted to explore some ideas about and underlying pluralism and, perhaps, the moral necessity of pluralism and pluralistic institutions for any society with a dominant normative liberalism and illiberal, but recognisable and plausible, competing paradigms. New Zealand is arguably such a society, thus New Zealand is likely a party to the liberal paradox.

Possible solutions to deep normative pluralism or the "liberal paradox", other than destruction of one or another of the opposing paradigms appear necessarily to require each paradigm to incorporate a fundamental and pervading commitment to pluralism itself. New Zealand, with revitalisation of the Treaty and recommitment to the "principles" of the Treaty, is wrestling with resolving the liberal paradox on an ongoing, daily, basis. In searching for a solution, the social goods of "trust" and "confidence" in public institutions, and in each other, are of deep concern. That said, non-action also has grave implications for "trust" and "confidence." Any institutional redesign in New Zealand ought to be cognisant of the arguable interdependence of "trust" and "confidence" with Heidegger's conception of cultural non-cognitive "backgrounds." The idea of the "background" implies possible mutual constraints on the process and the substance of development of deeply pluralist institutions.

The examples of juridic pluralism in Sudan and nascent political pluralism in Belgium are instructive for New Zealand, both in terms of actualities and in terms of achievement of aspirations underlying demands for structural recognition and promotion of illiberal normative paradigms. Sudan's extensive juridic, but essentially private, pluralism was not, apparently, adequate to address the aspirations for self-definition of the culturally distinct southern Sudanese. Belgium's experiment in nascent political pluralism has developed over time, starting with formal linguistic commitments and informal power sharing conventions. New Zealand has examples of both juridic pluralism and a history of gradual development of the formal institutions that underpin the type of nascent political pluralism developing in Belgium. In New Zealand, however, the normative divide between the two major worldviews is more profound than that existent in Belgium. One might expect then, that the sort of (relatively)69 peaceful progress in Belgium towards resolving the liberal paradox would require, perhaps, even more elaborate mechanisms of maintaining "confidence," promoting "trust" and allowing for evolution of the "background" than those devices and processes used in Belgium. Nonetheless, New Zealand could be seen to be already well along a Belgian style path.

Formally plural institutions incur monetary costs which a population may or may not wish to incur, depending on their dedication to diverse cultural flourishing. A reflective commitment to a deeply institutionalised dualism, albeit more expensive than monism, could address legitimate moral claims to cultural self definition by the Maori peoples and, at the same time, prevent New Zealand's unique identity from gradually dissipating into a uniform global economic and cultural marketplace.

In the end, you get what you pay for.

69 Compared with places like the former Yugoslavia.

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