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

by Tom de Boer

[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.

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

by Nico Krisch

[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.

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

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 18th 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.

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LJIL Symposium Vol 25-2: Fairness in International Environmental Law – Against Fairness? A Response to Mickelson and Posner

by Mario Prost and Alejandra Torres Camprubi

[Mario Prost is a Senior Lecturer at Keele Law School (UK) & Alejandra Torres Camprubí is a Research Fellow at the  Faculty of Law of the Universidad Autónoma de Madrid]

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.

We would like to thank the symposium organizers and contributors for providing an opportunity to discuss some of the arguments we make in our recent article ‘Against Fairness? International Environmental Law, Disciplinary Bias, and Pareto Justice’. In this article, we take issue with International Environmental Law (IEL)’s traditional neglect for considerations of distributive justice and its bias against the South – a bias first noted by Mickelson more than a decade ago in a groundbreaking article. We also consider the more recent and more direct attack from law and economics scholars against the notion that considerations of justice should play a role in the design of environmental regimes – an attack developed in its most systematic and methodical form by Posner and Weisbach in their Climate Change Justice. We are very pleased that Mickelson and Posner agreed to comment on our article and to be given a chance to respond to them.

Let us start with a point of clarification. In his response, Posner takes offence at the fact that his work is characterized as representative of conventional IEL scholarship, something he finds ‘far more wounding’ than any of our substantive criticisms. Whilst we sympathise with Posner (no one likes to be called conventional), the characterization is not ours and the point we make in our article is not that Posner and Weisbach are in the mainstream. We simply observe that, in addition to IEL’s quiet disregard for the South, a far more blunt and direct attack has been launched by law and economics scholars against the Third World’s claims of environmental justice. To be clear, we feel that Climate Change Justice does share much in the mainstream’s prejudice against the South, if only in its stereotypical depiction of ‘the poor’ making ‘unrealistic demands’ on industrialized countries and asking them to pay ‘simply because they are rich’. At the same time, we appreciate that, normatively, Posner is as far as it gets from the mainstream and its narrative of heroism.

In fact, Posner’s attitude is perhaps best understood as the mainstream’s perfect opposite. The IEL mainstream, as we try to demonstrate in our article, pretends to care about justice whilst continuing to use concepts, representations and a vocabulary which are intrinsically biased against the South. There is a form of hypocrisy at play – a Tartuffery almost –which, like Mickelson, we find ‘outrageous’ and ‘angering’. In contrast, Posner does talk about fairness, and at length, whilst pretending not to. What Posner calls ‘pragmatism’ and ‘realism’ may not look like fairness talk, yet fundamentally it is just that. The important point of course is that the fairness Posner advocates is fairness American style, a fairness which demands conveniently forgetting past wrongs because they are too complex to remedy, looking at carbon flows rather than carbon stocks, and rejecting per capita emissions as a principle of distribution because of their ‘politically unacceptable’ cost for large emitting nations. Posner’s work is thus not hypocritical in the way that conventional IEL can be. It is, however, political (we do not regard this as a bad thing) and in our view serves the same Western interests that the IEL discipline generally serves, only more blatantly.

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LJIL Symposium Vol 25-2: Fairness in International Environmental Law – Against Pragmatism?

by Eric Posner

[Eric Posner is Kirkland & Ellis Professor of Law and Aaron Director Research Scholar at the University of Chicago]

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.

Mario Prost and Alejandra Torres Camprubi’s article begins promisingly, with its criticism of IEL scholars’ “tacit disciplinary mindsets” which see international environmental law against all evidence as a “heroic and transformative project.”  But while one would have expected the authors then to launch a broadside against the idealistic tendencies in the IEL literature that have rendered most of it irrelevant to real-world policymaking, they pivot and criticize the literature for ignoring “fairness”—which is news to me.  The oddness of this approach is epitomized by their choice of target: my book (with David Weisbach), Climate Change Justice.  They are right to argue that we discount fairness in our book, but I do not think anyone would regard our book as representative of conventional IEL scholarship.  If that is their view, it is far more wounding than any of their substantive criticisms.

In any event, let me address these criticisms.  Prost and Camprubi argue first that we present the South “as an opportunistic negotiator” rather than as a “bona fide partner.”  I fear that we might get lost in semantics here, or the clubby rhetoric of diplomacy, but I regard all countries as “opportunistic negotiators,” out to seize the main chance, and willing to use whatever means available.  So if I say or imply that the South is “opportunistic,” I am treating southern countries as equals of the North, and resist the clichés so common among scholars, who take the rhetoric of (often authoritarian) countries at face value, and see developing countries as hapless victims or righteous spokesmen for justice.

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LJIL Symposium Vol 25-2: Fairness in International Environmental Law – A comment by Mickelson

by Karin Mickelson

[Karin Mickelson is an Associate Professor in Law at the University of British Columbia]

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.

It seems a bit dull to kick off an online commentary with a resounding “I agree”, but that is precisely how I am tempted to respond to Mario Prost and Alejandra Torres Camprubi’s “Against Fairness? International Environmental Law, Disciplinary Bias and Pareto Justice.”  When invited to comment, I assumed that Prost and Torres Camprubi’s analysis would either represent a critique of views that I hold dear, thus giving me an opportunity to defend them, or at least overlook some of those views, and thereby provide an opening to express them.  Instead, I find that the authors have provided a succinct, persuasive and eloquent analysis of how international environmental law has treated questions of fairness in general, and the concerns of the global South, in particular.  Rather than focus on trivial areas of disagreement, I have chosen to highlight one aspect of Prost and Torres Camprubi’s analysis that I found particularly compelling, as well as one area where I feel that they perhaps did not go far enough in raising the alarm.

To begin with, I must commend Prost and Torres Camprubi for being willing to talk about the South at all.  For it seems that everywhere one turns these days, one is confronted with assertions of the meaninglessness of the North-South dichotomy and the need to move beyond outdated notions of this kind.  While this is not at all unfamiliar to those of us who lived through the so-called “end of theThird World”, I still find myself baffled by how widespread this perception is.  What is perhaps even more surprising is just how easy it seems to be to dismiss any assertions of Southern solidarity or commonality. There seems to be absolutely no embarrassment about characterizing these assertions as the products of either (a) a lack of awareness of drastically changed global circumstances, (b) a lack of intellectual sophistication, (c) blatant self-interest, or (d) all of the above.  Ironically, these dismissals of Southern solidarity seem to coexist quite happily with what Prost and Torres Camprubi characterize as an essentialist construction of the South that denies its plurality and diversity, papering over the differences between and within states.  (You would think that it would be impossible to have it both ways, but here’s how it’s done: when it comes to listening to some kind of collective voice or assertion of agency, there is no such thing as the South, but if you want to make sweeping generalizations about lack of environmental awareness, generic “developing countries” fit the bill.)

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LJIL Symposium Vol 25-2: Introduction

by Leiden Journal of International Law

[Dov Jacobs is the Senior Editor for Expert Blogging at the Leiden Journal of International Law and Assistant Professor of International Law at Leiden University]

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.

In the next couple of days, this second LJIL Symposium brings to you two exchanges on articles published in Vol 25(2) of the Leiden Journal of International Law, on Climate Change and Legal Pluralism. As recent discussions on Opinio Juris show, these are topical issues and we hope that the following few days will contribute to the fruitful debate on these topics.

The first discussion revolves around Against Fairness? International Environmental Law, Disciplinary Bias, and Pareto Justice, the thought-provoking article by Mario Prost and Alejandra Torres Camprubi, with responses from Karin Mickelson and Eric Posner. While this constitutes the introduction to our symposium on Fairness in International Environmental Law (IEL), both authors raise issues that touch upon a number of considerations that are most relevant for international law in general. For one, they challenge the linguistic, and therefore ideological, biases of their colleagues. The rhetoric of progress and heroism that is in fact a mask on a patronizing view of the ‘other’, the ‘weak’ or the ‘victim’ is not specific to IEL. The fields of Human Rights and International Criminal Law are fueled in large part by such discourses and Manichean dichotomies of “good” Vs “evil”. The same is true of International Investment Law, which is structured by similar narratives on the greedy investor and the weak state representing the general public interest. It is therefore refreshing to see such self-reflection from the authors. Second of all, they discuss the role of fairness in IEL, specifically targeting its explicit exclusion by, among others, Eric Posner and David Weisbach in Climate Change Justice. Again, the question of what ‘fairness’ means as a philosophical and ethical concept, but most importantly its relevance as a legal norm, cuts across a number of fields of international law. The debate between the authors and Eric Posner illustrates the difficulty of approaching this issue. Indeed, while I agree with Prost and Camprubi that Posner, under the guise of pragmatism, is actually arguing another version of fairness, I would say that the substantial disagreement between them actually in itself proves Posner’s point. Because ‘fairness’ is not a monolithic concept in such a pluralist world, it will only be a relevant legal concept if some agreement can be reached on its content beforehand.

Which brings us to our second discussion, relating to The Limits of Pluralism, the thoughtful Review Essay by Tom de Boer of Nico Krisch’s Beyond Constitutionalism, the Pluralist Structure of Postnational Law. We are delighted that Nico Krisch himself, as well as Daniel Halberstam, two eminent participants in this debate, have accepted to contribute to the symposium. (more…)