[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.
