Value Pluralism and Legal Pluralism: Using Radbruch’s Value-Based Approach to Law to Understand Global Legal Pluralism

In this contribution to the Oxford Handbook on Global Legal Pluralism, I focus on the question how to different ideas of pluralism, legal pluralism and value pluralism, relate. The background to the question is the observation that in normative theories of global legal pluralism liberal principles are a core feature. Theories like those of Nico Krisch and Paul Schiff Berman are liberal in the sense that they affirm the need for respecting the life choices and conceptions of the good of individuals. This shows affinity to an idea of value pluralism as well, but then the question arises how a liberal idea of value pluralism relates to legal pluralism. Moreover, we may ask whether there are alternative accounts of value pluralism that can fruitfully be linked to legal pluralism as well. In this contribution I explore one such account at length, from the work of German legal philosopher Gustav Radbruch. In this chapter, sociological accounts of legal pluralism will be mostly in the background. I understand the existence of various legal orders and value-laden practices as a phenomenon in need of conceptual clarification and theoretical explanation. In order to make sense of theories of pluralism, especially value pluralism, it is necessary to study normative accounts of pluralism too. Both legal and value pluralism are issues on which a theoretical explanation of the phenomenon almost inevitably gives rise to the normative question how to deal with conflicting legal norms or values. I take position in the theoretical debate, and propose to use Radbruch’s theory of legal values in the context of global legal pluralism. This provides a different perspective on the role of values in global legal pluralism than implied by the more commonly used liberal outlook. Radbruch’s work yields a criterion to distinguish law from other normative orders, it accounts for variable content of global legal orders, and it makes sense of the tensions between the basic values of law and the relative importance they have in different legal orders.

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