LJIL Symposium Vol 25-2: Beyond Constitutionalism – How Radical Pluralism Bites Its Own Tail

[Tom de Boer is a Candidate, Research Master Public International Law at the Amsterdam Law]

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.

To start, I want to thank Nico Krisch for his fair and enlightening reaction to my review essay and the clarifications on his book, and Daniel Halberstam for his interesting contribution to this debate.  Below I will try to analyze the positions of both scholars, react on both commentaries, and clarify my own position on the issue of legal pluralism addressed in Krisch’s book, Beyond Constitutionalism: The Pluralist Structure of Postnational Law.

As I note in my review essay, Krisch’s book revolves around the question how best to deal with postnational law, that is characterized by a proliferation of international organizations and fields of international law in which states lose more and more of their sovereignty. This process of internationalization puts strains on democratic decision-making processes at the national level and could potentially lead to alienation from the international legal order of both states and their citizens.

How should this problem of an ever-growing messiness at the international level  be addressed from a legal perspective? And what should be the relationship between the legal orders – international, regional and national – that are part of this constellation of postnational law? With his plea for radical pluralism Krisch has positioned himself at the far-end of the spectrum in the debate that flows from these questions. His view constitutes a break with the constitutionalist approach, which aims for a transfer of the qualities of national legal systems – such as a clear hierarchy and enforcement mechanisms of legal rules – to the international level. Krisch aims for an international legal order which is founded on a pluralism that ‘eschews ultimate authority and overarching conflict norms’, in which also the nature of the relationship between the different suborders is principally unsettled.

In his commentary on my review essay, Krisch responds to what I see indeed as the major drawback of his normative choice for pluralism. Krisch’s pluralism would, in my view, not lead to mutual openness of legal orders, but to quite the opposite – containment and a retreat to national and regional sovereignty. A fundamental choice for pluralism will give states and judges too much leeway to balance domestic interests and values to the international rules of law. Radical pluralism could lead not just to the demise of constitutionalism, but eventually demise to the end of international law itself.

Krisch defends his view and ripostes my gloomy criticism with two basic arguments. First, with skepticism about the feasibility of ‘a common, constitutional frame in the postnational space’. The lack of ‘some commonality of values’ and ‘communicative space’ at the international level means there will be too much disagreement and contestation, which leads to instability of the legal system. Second, Krisch highlights the hegemonic nature of the constitutionalist rules. In the end, the powerful states decide which rules become constitutional, leaving out the weaker states in this process of law-making. The result is the less influential states are consequently stuck with rules they and their citizens do not support. Thus, so Krisch’s argument goes, because some parties are systematically excluded from ‘international law’, which is Western and cosmopolitan in nature, the international legal order is fundamentally unstable and dysfunctional.

While it is hard to disagree with Krisch that international law has hegemonic tendencies, and I am the last to believe that it will ever be possible to have a full-fledged international rule of law, it is even harder to see how pluralism would solve these problems. It is curious that Krisch’s main criticism of international constitutionalism is that it is ultimately political and hegemonic, while he supports a legal pluralism that is even more political in nature and principally lacks an external legal constraint for the actors that are part of it.

Who will measure the competing values if we choose for radical pluralism? Internationally, the powerful states are in that case not just able to create new international rules, but – since the rules are not fully binding anymore – they can also ignore them if they compete with national interests. At the national level states can start balancing national interests against international duties versus individuals. It could lead to troubling results in the fields of law that protect the weak instead of the strong, such as refugee or human rights law, where states are already disregarding the international rules on a wide scale. Although I think there is great descriptive value in Krisch’s analysis, I find the path of radical pluralism normatively unappealing and flawed in its utopian belief in the power of contestation in politics – making postnational law more political will sooner lead to improvement of the positions of the powerful, not the weak.

So if radical pluralism ultimately fails in most its important attempt, what should then be the solution to the problems that are part of postnational law?

Halberstam’s answer to the above question is – as he notes himself in his commentary – not as different as appears from Krisch’s book. The most important difference is that Halberstam’s pluralism is not radical, but constitutionalist in nature. He does not support ‘sheer multiplicity’ or a principled unsettledness of legal norms, but mutual openness that is embedded in the constitutions from the different legal orders. Less than in Krisch’s pluralism, which heralds the possibility of contestation, Halberstam’s constitutional pluralism is aimed at mutual accommodation, at finding common ground – which he calls ‘grammar of legitimacy’ (which is different from consistent interpretation).

In my view, mutual openness can indeed be of a constitutional nature – take the Dutch constitution with its openness for international law. However, when Halberstam speaks about ‘no hierarchy, no overarching legal system, and no single arbiter’ I am puzzled by the ‘no hierarchy’ element, which resonates radical pluralism. The Solange-doctrine, Costa/ENEL, the Dutch constitution: in the end they all contain – sometimes more, sometimes less accommodating – hierarchical claims. The ‘grammar of legitimacy’, given flesh and bones by Halberstam with the concepts of ‘voice, expertise and rights’, is apparently different and non-hierarchical. In my view, however, these concepts are too abstract and evaluative: whose voice, expertise and rights? At a horizontal international level – when we deal with the question in which field of law a certain conflict belongs and which court is best suited to handle the case – this is an interesting concept, but when there are competing claims from different legal orders, I would – as a subject of law – rather prefer clear hierarchical rules that offer legal certainty. Also with Halberstam’s theory there is a danger that competing claims based on the ‘grammar of legitimacy’ turn postnational law in permanent disorder, just like radical pluralism would do. Again, like Krisch’s legal pluralism I find Halberstam’s plural constitutionalism interesting from a sociological descriptive perspective – why and on the basis of which values or qualities do courts or jurisdictions claim supremacy? – but normatively and legally unappealing.

So what is the alternative? What is my answer to the problems that are undeniably part of the constellation of postnational law? I fully agree with Krisch that ‘finding a balance between multiple competing values […] is not something already achieved through some constitutional rule’. However, while constitutionalism is not a panacea, it is the best we have. Postnational law is not static, it lives, grows, usurps and contains a constant interplay between legal fields, political interests and legal orders. Contestation is possible within the constitutional framework that we have today and I am convinced that we need to keep the contestory claims hierarchical in nature to make them work. Moreover, courts have ample tools and doctrines – such as consistent interpretation, progressive development, implied powers, living instrument, margin of appreciation – to manage collisions between legal orders. So my plea would be for constitutional accommodation, on clear legal standards and hierarchical rules. Fundamentally accepting a non-hierarchical pluralism would make postnational law like an expanding swamp of quicksand, in which the weak, not the strong, will ultimately drown.