LJIL Symposium Vol 25-2: Beyond Constitutionalism – Pluralism’s Promise

[Nico Krisch, Professor of International Law, Hertie School of Governance; currently Visiting Professor of Law, Harvard Law School.]

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.

Tom de Boer’s review of my recent book, Beyond Constitutionalism: The Pluralist Structure of Postnational Law, presents not only a careful analysis, but also a direct challenge to its normative thrust. This gives me an opportunity to defend and clarify my views, and I am grateful to the editors of the Leiden Journal of International Law for allowing me to do so in this Opinio Juris discussion.

De Boer’s critique is constitutionalist in nature and internationalist in outlook. What he finds most troubling in the book is that the pluralist structure I defend may allow national courts to question international law’s authority on dubious – particular rather than universal – grounds. The potential danger of pluralism, he argues, is much broader than what emerges from the relatively benign examples in the book: pluralism may open Pandora’s box to all kinds of problematic action by domestic political and judicial bodies and thus undermine the force of international rules. A constitutionalist order, in de Boer’s view, would be better able to protect international law and institutions from such unwarranted challenges.

This portrayal of the potential consequences of a pluralist order is not implausible. Pluralism as I see it eschews ultimate authority and overarching conflict norms, and it grants different parts of the global legal order the space to distance themselves from the others. It creates an interplay of suborders in which the relationships are defined from within each suborder, both as between different international regimes and between different layers of law in the interaction of national, regional, and international orders. There is no overarching, hierarchical frame that would order their relations, and consequently no external legal constraint that would keep the suborders from getting it wrong.

The openness of such an order makes many lawyers and political theorists uncomfortable. De Boer is one of them: he insists on the potential of constitutionalism to bring about justice and order and seeks ‘hard guarantees in the form of legal norms that protect the interests of the different actors’ as well as hierarchies with clear lines of authority. Otherwise, the necessary support for international cooperation would be undermined. De Boer is in good company here – not only in that of the many constitutionalists populating the field today, but also of those pluralists who, afraid of the potentially radical implications of their idea, opt for some ultimate relief through a common legal frame.

Such a frame is indeed immensely appealing – it could set out the ground rules for interaction in the global space and supply common values, principles of justice, and rules for the distribution of powers among the many actors and sites in global governance. It would create justice and order through law – just as in domestic constitutionalism, that guiding light of our political efforts for the past two centuries. How could one even think that we could – and should – do without such a frame? How could one opt for the messy world of pluralism in the face of a constitutionalist alternative that has embodied our hopes for enlightened self-government for so long?

One reason, as I explain in the book, is skepticism about the actual promise of a common, constitutional frame in the postnational space. In order to be effective, such a frame would have to rest on matching social conditions – some commonality of values, a communicative space, and readiness to engage on common ground. Already in many domestic contexts, these conditions are lacking, and the constitutionalist project has faced serious challenges from high levels of contestation and disagreement, especially in multicultural settings. These difficulties are exacerbated by the radical diversity that characterizes the global realm. The hope that in this context legal rules and hierarchies could remove fundamental issues from politics is tenuous at best. Most likely, the very rules that are meant to provide the frame for politics will instead become the object of contestation and resistance – and thus bring neither stability nor, ultimately, justice.

Secondly, whose order would such a constitutionalist global order be anyway? De Boer concedes that ‘constitutionalism can induce a static situation which can lead to an unpleasant status quo’, and he mentions the example of the UN Security Council with its unequal and anachronistic membership and voting rules. This reminds us that constitutional rules have to be created by someone – not normally by an enlightened political theorist, but by a real set of social actors. In the global context, it will typically be a group of powerful countries. Is this likely to result in the constitution we want? De Boer tellingly wavers here. The Security Council, he says, is ‘at least a stable institution’, generally benign, except that the creation of the veto was a ‘mistake’ – which he thinks might be counteracted by national courts resisting some of its edicts. This argument is revealing. In the first place, it undermines its constitutionalist starting point by allowing national courts ‘to abandon … a strict application of formal rules of hierarchy’. Yet more importantly, it treats the flaws of the global order as a mere ‘mistake’ – as if we could avoid them if only we thought hard enough about institutional design. But this is not the case – any institution will be ‘flawed’ in the sense that its design will follow, to a large extent, the interests of those with the power to get the rest to agree. Any postnational constitution will stray far from what we may think should be its content – it will be ‘hegemonic’, whether we like it or not.

Should this make us opt for a pluralist order instead? Or would pluralism not, as de Boer suggests, lead us into a ‘containment’ approach in which domestic constitutions have the ultimate say and international law is hollowed out? Pluralism does indeed grant national legal orders space to define their relations with other parts of the global order. But unlike in containment, it does not see them as hierarchically superior – formally, all parts of that order operate on an equal footing, and it is a matter of politics, rather than of the application of legal rules, to determine their relative weight. This may at times lead to frictions and conflict. But such conflict is merely the consequence of a coexistence of different – and often equally valid – claims to authority. If the UK Supreme Court insists that it be for the UK Parliament to decide how Security Council resolutions are implemented, does it really create a ‘danger for the peace and security system of the United Nations’, as de Boer surmises? Or does it simply give expression to the fact that many (perhaps most) people still believe that important political questions ought to be decided on the national level? If it is the latter, at least in part, it needs to find reflection in the global institutional order – we cannot simply act as if our own cosmopolitan convictions were shared by all and override the loyalties and allegiances many people continue to have to their national contexts. Respect for the autonomy of individuals also means respect for the views they have on the type and scope of the polity they are governed by. As long as these views diverge widely in the postnational space, it is better to leave ultimate authority in that space unsettled. Instead of being fixed as a matter of law, ultimate authority is then subject to political definition and redefinition over time.

This does not imply that strong institutions or hierarchies become impossible. It only means that whatever hierarchies there are, they operate within or between legal orders. They are not imposed upon the suborders by a common frame – they are contingent, and their notion of legality does not necessarily extend to all suborders. This may make resistance to international law in the name of local values easier in some cases. But unlike Tom de Boer, I do not think the invocation of such particular, ‘less cosmopolitan’ values presents a problem in itself. Legal order will only arise out of the radically diverse and contested postnational space if it brings values and ideas from different levels together. Finding a balance between multiple competing values – subnational, national, cosmopolitan – is not something already achieved through some constitutional rule that we could dream up (or claim to exist). It is a task ahead of us – one that we need to confront with patience; with the readiness to accept compromises; and with sufficient humility to recognize that we may not always know what is best for everybody else in the complex world we live in.