The Necessity of Institutional Pluralism.

This article examines how the institutional source of legal norms—whether constitutional, statutory, or judge-made—fundamentally shapes the nature and value of the rights they establish. It argues that identical norms produce different goods depending on the institution that enacts them, with constitutional rights reflecting duties independent of majority will, statutory rights expressing the choices or judgments of the political community, and common law rights grounded in reasoned judicial deliberation. The authors contend that this institutional differentiation is normatively significant, affecting the meaning, legitimacy, and protection of rights such as same-sex marriage or non-discrimination. They further suggest that recognizing the institutional origin of norms has practical implications, including the potential for novel legal remedies that address harms caused by misclassification of rights. The article also acknowledges that institutional configurations vary across legal systems but maintains that the connection between institutions and the qualitative nature of legal goods remains essential.