by Nico Krisch. Oxford, UK: Oxford University Press, 2010. 384pp. Cloth £50.00/$100.00. ISBN: 9780199228317.Reviewed by Ming-Sung Kuo, University of Warwick School of Law. Email: M-S.Kuo [at] warwick.ac.uk.
pp.247-252
Since the collapse of the Berlin wall, the world order has been undergoing a long, great transformation. So has the legal world. Echoing the stories of globalization as to how issues have become transboundary, the “great divide” between international law and national law is seen as having been transcended. Yet, the legal landscape after this great transcendence is not as clear as the flat world perceived to be looming from economic globalization. It takes prescient observation, intellectual erudition, and creative imagination to map out the brave new world of law. Bringing his multinational academic background, Nico Krisch, currently based in Hertie School of Governance in Berlin, Germany, joins the myriad scholarly attempts to draw the new legal map as displayed in his prescient, erudite, and imaginative BEYOND CONSTITUTIONALISM: THE PLURALIST STRUCTURE OF POSTNATIONAL LAW. Engaging with the current debate between pluralists and constitutionalists as to the future of the legal order, Krisch in this book not only presents a systematic defense of the pluralist view but also provides an incisive diagnosis of the state of our globalizing world. Pace the world flattened to facilitate economic flows, Krisch portrays the legal landscape in postnational terms, envisioning a legal world overlayered with distinct jurisdictional regimes.
Departing from the post-Westphalian world order as characterized in academic literature and popular media following the end of the Cold War, Krisch subscribes to the postnational view of the configuration of the world legal order. On this view, the distinction between international law and national law can no longer hold up as more and more transboundary issues arise and require transnational collaboration. On the one hand, boundaries delineating jurisdictions between sovereign states have been overwhelmed by waves of transboundary issues. On the other hand, traditional international law tools have failed to live up to the challenges from transnational regulation. Neither traditional dualism nor strong monism that conceives national legal systems and international law in an integrated legal order provides the urgently needed answer. Rather, notes Krisch, we are faced with a “postnational law,” “a frame comprised of different orders and their norms…overcome[ing] the categorical separation between the spheres, without however merging them fully or necessarily defining the degree of authority their different norms possess” (p.12). If the postnational view provides a lens through which the post-Westphalian world order can be rightly characterized, the state of postnational law remains yet to be spelled out systematically. This is where Krisch [*248] intervenes with his strong pluralist position.
The reviewed book consists of three parts. Each part has three chapters. In the first part titled “Visions of Postnational Law,” Krisch identifies and appraises three attitudes among scholars in the face of the postnational structure of the global legal order: containment, transfer, and break. The “containment” attitude aims to restore the old order by breathing new life into the faded “great divide” between international and national law (pp.14-15). The second attitude towards the postnational structure of the global legal order is reflected in the emerging scholarship on global or international constitutionalism, which Krisch terms “postnational constitutionalism,” projecting the “transfer” of constitutional values rooted in nation-states onto the global legal order (pp.15-16). To make his case for a “break” with the proposed paradigms organized around the recasting of constitutionalism, Krisch assumes the inevitability of the decline and fall of the Westphalian structure in his introduction to the whole book project. Accordingly, he simply declares in Chapter 1 that containment by rallying around domestic constitutional orders provides no answer to challenges of globalization confronting contemporary world legal order (pp.17-22). In contrast to his summary exclusion of containment from the structural (re)construction of postnational law, Krisch engages the transfer attitude and the corresponding postnational constitutionalism closely. He devotes the entire Chapter 2 to the analysis and critique of the idea of transferring domestic constitutionalism to the global level, conceiving of myriad jurisdictional regimes, including national constitutional orders and international legal sectors, as components of an integrated global legal order guided by constitutional values. Krisch digs into the evolution and architecture of modern constitutionalism and raises the concern over the negative implications of constitutionalism to the diversity of jurisdictional regimes in the global legal landscape. Moreover, considering the elusiveness of a global political community, the idea of foundational constitutionalism at the heart of modern constitutional orders would be lost in translation when projected onto the global political setting.
Fighting containment and transfer in an asymmetrical fashion, Krisch proceeds to lay the groundwork for pluralism in Chapter 3, which envisions a new paradigm of the legal order around the idea of break. Krisch not only continues his challenge to constitutionalists with his pluralist position but also distinguishes himself from his comrades in the pluralist camp by laying out his strong “systemic” pluralism (pp.71-78). Taking the diversity of jurisdictional regimes seriously, he portrays a pluralist structure of postnational law in which each jurisdiction claims the ultimate supremacy of its own legal norms without subsuming under an overarching framework as institutional pluralism suggests. In addition to making the case for the strength of systemic pluralism in analyzing the current condition of the global legal order, Krisch rests the normative foundation of pluralism on the idea of public autonomy, going beyond the virtues of adaptation, contestation, and checks and balances associated with pluralism (pp.78-103). The underlying principle of public autonomy is “freedom of association” (p.90), [*249] embracing “individual choices of the associations they want to form part of” (p.91). In this way, pluralism takes on a participatory, proceduralist character. Moreover, drawing upon Jürgen Habermas’s attempt to reconcile rights and democracy, Krisch challenges the scope of polity as a precondition for public autonomy (pp.94-95). Rather, he asserts that the scope of polity itself can be reappraised through the prism of public autonomy at no risk of leading to an infinite regress (pp.93-95). From this perspective, the multiplicity of jurisdictional regimes in the postnational global legal landscape corresponds with the idea of public autonomy, indicating the normative superiority of pluralism to other visions of postnational law.
Krisch does not build his case for pluralism purely on theoretical reflections. He tests his pluralist structure of postnational law with three case studies, which are drawn from the experiences of European integration and the practices of global governance. In Part II, Krisch discusses three cases concerning the interfacing of multiple jurisdictional regimes, each of which stakes a claim to the ultimate supremacy. In Chapter 4, he analyzes the European human rights regime in pluralist terms. Challenging the constitutionalist account of European human rights law, Krisch argues that national courts, the European Court of Justice (ECJ), and the European Court of Human Rights (ECtHR) are interrelated in a pluralist structure. Following this easy case in which rival jurisdictions coexist in a more or less homogenous environment, Krisch discusses two hard cases. While Chapter 5 discusses the “Smart Sanctions” mandated by the United Nations Security Council, the controversial case of the regulation of genetically modified organisms (GMOs) is investigated in Chapter 6. Both cases, in Krisch’s view, show that the conflicts resulting from multiple jurisdictional regimes are adequately managed in accordance with a pluralist ethos.
To complete his case for pluralism, Krisch returns to the theoretical debate surrounding the virtues and vices of pluralism. Picking up where he left off in Part I, Krisch confronts the challenges posed toward pluralism head-on in Part III. To make a case for the pluralist structure of postnational law, Krisch acknowledges that pluralism needs to answer the questions concerning the stability of cooperation, the unbalanced power relations, the rule of law, and democratic accountability in the global legal landscape (p.225). The issues surrounding cooperation, stability, and power relations are addressed in Chapter 7, while Chapter 8 responds to the concerns over the rule of law and democracy. In contrast to his justification for pluralism in Part I, Krisch here tactically answers the challenges from these four aspects by comparing pluralism with constitutionalism (p.226). Again drawing upon the pluralist virtues of adaptation, contestation, and checks and balances, he claims that pluralism leads to no less cooperation and stability than constitutionalism does, while pluralism, equipped with the virtue of contestation, better tackles the unfair power structure in international relations than constitutionalism by making the status quo more revisable (Chapter 7). In addition, pluralism sheds new light on the rule of law and democracy, balancing their classical values against [*250] other competing goals to be achieved in the globalizing world (Chapter 8).
It is here that Krisch unfolds his roadmap for a working version of the pluralist structure of postnational law. In concluding Chapter 8, he proposes a set of “interface norms” that would guide the interrelations between jurisdictional regimes in the global legal order. Notably, the pluralist interface norms function more as judicial ethos than as legal rules, despite its evocation of conflict of laws. Taking account of the doctrinal tools used by the European courts to deal with the inter-regime relations resulting from the governance complex in Europe, Krisch discusses varieties of “conditional recognition” underpinning his interface norms. He subscribes neither to an equivalent of “ordre public reservations” in the conflict of laws tradition nor to the criterion of “value identity” as suggested in the Advocate-General’s Opinion in the ECJ’s KADI (2008) decision. Instead, Krisch advocates the “equivalence approach” of the ECtHR, which is similar to the famous Solange approach adopted by Germany’s Federal Constitutional Court to manage its relationship with the ECJ in controlling the secondary legislation of the European Union (pp.287-89). Moreover, what is crucial to the functioning of the pluralist interface norms is the judicial attitude. Instead of a teleological legal reasoning, the judicial ethos of pluralism is guided by minimalism. Accordingly, the inter-regime relations would be managed through judicial dialogues, which are conducted in the light of political judgment rather than legal rules (pp.290-94). Taken together, judicial politics lies at the core of Krisch’s case for pluralism, while his proposed pluralist interface norms are “normative, moral demands that find…legal expressions only within the various sub-orders” without taking on “an overarching legal character” (p.296). “[T]he ECtHR’s evolutive but highly case-specific application of the margin of appreciation” (p.290) exemplifies the utility of non-rule-based interface norms in facilitating the dialogues between different jurisdictional regimes.
Departing from his emphasis on the centrality of judicial politics to the pluralist structure of postnational law in Chapter 8, Krisch concludes in Chapter 9 with suggestions as to a new paradigm of law, which would “shift away from binary conceptions of law” and move toward “a form of graduated authority” (p.305). While Krisch starts the book with mulling over the structure of the postnational global legal landscape, he concludes his exploration by pointing to a new concept of law. Nevertheless, Krisch’s pluralist manifesto not only heralds a new paradigm of law but also suggests new conceptions of politics and constitutionalism.
First, blurring the distinction between law and non-law, the concept of law as envisioned by Krisch is characteristic of an appraisal of the “weight” of “persuasive authority” of different normative sources that claim to have legal force (p.305). Accordingly, the judgment over legality is not binary but rather amounts to the allocation of legal weight in a continuum of norms. On this view, lawyers would act more like administrative managers than judicial officials. As a result, judicial politics takes the place of legal reasoning. Relatedly, that courts and judges occupy [*251] center stage in the pluralist politics of postnational law suggests a new concept of politics looming from Krisch’s case for pluralism. Put bluntly, Krisch’s politics is post-political. As Krisch stands firmly on the side of a strong systemic pluralism in which jurisdictional claims to ultimate supremacy compete with each other, he appears to embrace a Huntingtonian clash of civilizations (Paulus 2005). Yet, in stark contrast to the friend vs. enemy political struggles arising from the clash of civilization (Schmitt 1996), Krisch’s envisioned politics is all about dialogic negotiation and rational calculation based on reason. From this perspective, the scope of polity is no longer part of political narratives in which the history of the political struggles between friends and enemies unfolds but becomes an object of critical reasoning instead. The politic body of the state dissolves into myriad associations of individuals (pp.90-103). Stepping out of the woods of the political, politics in pluralism is not the privilege of political departments any more but open to the courts. Seen in this light, the judicialization of politics and the politicization of the judiciary are not symptoms of political pathology but indications of a post-political politics.
Echoing his reconstruction of law and politics, Krisch reconceptualizes constitutionalism, which traditionally bridges law to politics. As the main title “Beyond Constitutionalism” suggests, Krisch presents the pluralist structure of postnational law as going beyond the constitutionalist account of the global legal landscape. Yet, his ambition extends beyond challenging postnational constitutionalism. Rather, he fundamentally questions the meaning of constitutionalism as we know it. On the one hand, he notes, “it may also be advisable to shift our interpretation of existing constitutional settlements—instead of regarding them as ultimate frame of reference, we may see them as compromises on circumscribed issues, leaving fundamental questions undecided except where explicitly agreed” (p.303). On the other hand, these downgraded constitutional orders of nation-states are placed on par with the myriad transnational regulatory regimes. In this way, Krisch seems to implicitly add constitutional traits to sectoral jurisdictional regimes, partial or not, albeit in a downgraded fashion. Despite his polemical skepticism of the constitutionalist account of postnational law, he does not so much go beyond constitutionalism as points to a new concept of constitutionalism.
Krisch promises to provide a roadmap for the future of the postnational global legal order. Yet, looming from his strong pluralist position is a radical reconfiguration of law, politics, and constitutionalism, indicating a brave new world of law. It remains to be seen whether this brave new world is the fate of law. Undoubtedly, this will take the same degree of prescient observation, intellectual erudition, and creative imagination as Krisch has shown to us to figure out the way ahead.
REFERENCES:
Paulus, Andreas L. 2005. “Jus Cogens in a Time of Hegemony and Fragmentation: An Attempt at a Re-appraisal.” NORDIC JOURNAL OF INTERNATIONAL LAW 74: 297-334. [*252]
Schmitt, Carl. 1996. THE CONCEPT OF THE POLITICAL. Translated by George Schwab. Chicago, IL: University of Chicago Press.
CASE REFERENCES:
KADI & AL BARAKAAT INT’L FOUND. v. COUNCIL OF THE E.U. & COMM’N OF THE E.C. (KADI), Joined Cases C-402/05 P & C-415/05, 3 C.M.L.R. 41 (2008).
© Copyright 2011 by the author, Ming-Sung Kuo.
