LJIL Symposium Vol 25-2: Beyond Constitutionalism? – A comment by Daniel Halberstam

[Daniel Halberstam, Eric Stein Collegiate Professor of Law and Director, European Legal Studies Program, University of Michigan Law School.  External Professor, College of Europe, Bruges]

This post is part of the Leiden Journal of International Law Vol 25-2 symposium. Other posts in this series can be found in the related posts below.

Nico Krisch’s justly award-winning book thoughtfully elaborates on an approach to global governance that he sometimes calls “radical pluralism.”  His basic point is that politics, not law governs the relationship among the different legal systems and regimes. Beyond Constitutionalism offers the reader a valuable overview of a dense, often messy topic, deftly weaving through ample case studies and secondary literature.

Krisch’s argument in favor of pluralism is extremely careful – indeed it is cautious to a fault.  The dizzying collection of conditional statements, disclaimers, and passages highlighting difficulties with pluralism leaves the reader wondering just how strong the case for radical pluralism really is.  Nonetheless, on the basis of numerous ties and razor thin calls (Cf., e.g., at 276: “None of this allows for ultimate conclusions about pluralism’s and constitutionalism’s respective virtues when it comes to democratic governance” or at 280 “As regards predictability and argumentative rationality then, pluralism does not necessarily fare worse than constitutionalism.” (italics mine)), Krisch sums up his book in the end as having presented a “provisional . . . but relatively strong case for the pluralist vision.” (302)  How so?  How can a series of barely detectable advances amount to a “strong case” in the end?

The answer lies in the word “relatively.”  The case for the pluralist vision is “strong” only when judged “relatively” against the particular “constitutional” vision that Krisch features as the steady point of contrast throughout his book.

As Tom De Boer’s commendable review explains, Krisch has chosen as his foil a rather wooden conception of constitutionalism against which to size up the case for pluralism.  To be sure, Krisch opens with a nuanced discussion of competing visions of constitutionalism, both past and present.  But he quickly settles on “foundational constitutionalism,” with its roots in the radical revolutions of the 18^th Century, as the alternative against which he argues in favor of his brand of pluralism.  The foundational vision of constitutionalism sees radical politics as creating a comprehensive legal framework that, in turn, grounds and limits all politics and all exercises of public power.

Krisch explains that this vision has not yet been, and is unlikely ever to be, transferred to the realm of global governance. That’s because this vision of constitutionalism, according to Krisch, requires us to imagine a unitary, hierarchical, and perfectly ordered legal system: “one common, overarching legal framework that would integrate postnational governance, distribute powers, and provide for means of solving disputes between the various layers of law and politics.”  (69)  I could not agree more. If measured against that vision of constitutionalism, the case for pluralism does seem to be “relatively strong.”

In his review essay, Tom De Boer points out that we did not need Krisch’s book to see the difficulties of re-creating that particular vision of constitutionalism at the global level.  Indeed, as applied to the international arena, this “strong constutionalist” vision (as Gráinne De Búrca has called it) has already come under considerable attack from many sides.

Still, Krisch is not entirely at fault for choosing this traditional, sanitized vision of constitutionalism as his foil.  The dominant conception of a constitutional system (though more so on the European continent than in the Anglo-American world) is, indeed, one in which everyday politics is neatly cabined by law, and authority is neatly ordered in a comprehensive legal framework.  An array of respected scholars seems to take that idea as their baseline when assessing constitutionalism at the international level.

Nonetheless, as a way of choosing properly among various theoretical approaches to global governance, comparing radical pluralism with this sanitized version of foundational constitutionalism stacks the deck in Krisch’s favor.  As de Boer notes, there are other, far more promising conceptions of constitutionalism that see the practice as more nuanced and more messy.  To his credit, Krisch does briefly discuss many of these contributions (73-78).  But he is too quick to suggest that such theories all seek to consolidate power through some form of hierarchy.  Compounding the problem, Krisch swiftly sweeps several distinctly non-constitutional theorists into the disfavored camp of “constitutionalists” as well.

One of the crucial points Krisch makes in this regard is that constitutionalists at most allow for “institutional” pluralism, but not for “systemic pluralism.”  (73, 77)  That is, Krisch claims that constitutionalists allow, at most, for competing interpreters of a single legal order but not for competing legal orders as such.

Given that Krisch here picks up on, and specifically addresses, some of my own writing on the subject, I shall focus the remainder of this brief comment on fleshing out our differences (and similarities) on this point.  I do this not to clarify the record, but in the hope of showing more broadly that constitutionalism, carefully understood, has far greater promise as an alternative to radical pluralism than Krisch lets on.  I am, of course, not alone in this still-nascent enterprise of rethinking constitutionalism.   But to stay out of trouble, I shall speak in what follows only for myself, not for any blanket group of “constitutionalists.”

My own goal in introducing the distinction between “institutional pluralism” and “systems pluralism” in the past was not to deny that the latter is a form of constitutionalism. To the contrary, the point was to distinguish the two practices, to highlight their similarities, and to bring both under the rubric of constitutionalism.  Systems pluralism in constitutional law (at least as I have used the term) thus marries pluralism and constitutionalism into a decentralized practice of managing multiple claims of final legal authority among different yet constitutionally linked legal systems.  Now that already sounds much closer to Krisch’s preferred pluralism than the wooden form of constitutionalism he takes as his foil.

But Krisch would probably be right to detect differences between his “radical pluralism,” on the one hand, and my “plural constitutionalism” or “constitutional heterarchy,” on the other.  The key here is the constitutional link.  Krisch’s vision mostly depends on stressing what we can simply call “multiplicity.”  Krisch focuses principally on the sheer existence of the conflicting demands of multiple legal systems, each with its own claim to final legal authority.

Focusing chiefly on multiplicity, however, suggests that the relationship between, say, the European Union and the United Nations in a question of enforcing UN Security Council sanctions is the same as that between the United States and Egypt in the case of the extraterritorial application of anti-trust law.  But to think that the two scenarios are governed equally by politics alone, is to miss something important. Post-national governance, to use the fashionable term, involves more than mere “multiplicity.”  It depends on constitutional connective tissue between the various legal systems that are at play with one another.

The plural theory of constitutionalism that I, for one, have explored in recent years focuses attention on this connective tissue. On this view, the constitutional connective tissue is central to moving us from sheer multiplicity to constitutional pluralism. In addition to multiplicity, it involves two things.  First, “mutual embedded openness”: the various legal systems are committed, each by its own constitution, to recognizing the existence and normative pull of the other system(s).  Second, a common “grammar of legitimacy”: actors of one system compete with actors from another based on mutually intelligible arguments about comparative legitimacy.  The elements of this grammar of legitimacy, in turn, derive from the practice of constitutional law.

Details aside, this constellation of authority (multiplicity, mutual embedded openness, and a shared grammar of legitimacy) does not always obtain.  But where it obtains, we have more than radical pluralism. We have constitutional pluralism (or “constitutional heterarchy,” as I have sometimes termed it).

This is not a mere matter of labels.  Where the constellation of authority just described exists in operation, we have a multiplicity of constitutional systems whose interaction is mediated, in an important sense, by the constitutional law of the various systems and by arguments that generally sound in constitutional values (even though there is much disagreement about the specifics of those values).  There is no hierarchy, no overarching legal system, and no single arbiter. But the interaction is shot through with constitutional law and practice. It is both constitutional and plural at once.

Radical pluralism glosses over the constitutional nature of this constellation and its connective tissue.  To be sure, Krisch has now included in this book a discussion of “interface norms.”  But the discussion at the tail end of the book comes almost as an afterthought (285-96).  Indeed, a careful student of Krisch’s work might see this as a concession to constitutional pluralists or indeed an indication that Krisch has become afraid of radical pluralism himself.  Krisch downplays the significance of these norms by saying that they create no more than “normative, moral demands.” (296).  But that makes matters too easy for his side of the ledger.  Where do we find these interface norms?  Where do these demands come from?  Why must the various actors obey them?  And what shapes their broader content in the eyes of official actors who must seek to implement these norms?  The answer to all of the above is constitutional law and constitutional practice.  And if that’s true, then we’re not operating “beyond constitutionalism” after all …