The Appreciation of the Rule of Law: Normative Pre-Requirements

Contemporary constitutional democracies are multicultural. My purpose in this talk is to present a necessary condition for such societies to be plural and not degenerate into diverse societies, a tendency we see throughout Europe today. By a “plural society”, I mean a society where the people desire for its own sake a society in which they cooperate with each other on terms they all can accept. That is, they have a second-order desire for what John Rawls and others have called “a social union of social unions”. By a “diverse society”, I mean a society in which the people lack this desire, and withdraw from the society at large in order to pursue their own private ends within more or less closed communities. Richard Rorty and his followers have presented one solution to this task, namely patriotic liberalism. I find this proposal inadequate, since making the demand that they should adopt a foreign national identity might lead to discrimination and suppression against immigrants. The present, alternative account is thinner and more general. I argue that an appreciation both of the role of the rule of law in our democracies and the political virtues that founds them are the appropriate condition. Despite political and cultural differences in institutionalization, such as the form of judicial review, the actual democracies share a common legal, political and normative structure. This structure, I maintain, provides the conditions for the social union of social unions. According to this understanding, vague and highly abstract talk about national identities and national values fall out of the picture, and an appreciation of the structuring and organization of contemporary constitutional democracies takes its place.