[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.