Beyond Constitutionalism ─ The Pluralist Structure of Postnational Law

Under pressure from globalization, the classical distinction between domestic and international law has become increasingly blurred, spurring demand for new paradigms to construe the emerging postnational legal order. The typical response of constitutional and international lawyers as well as political theorists has been to extend domestic concepts u especially constitutionalismubeyond the state. Yet as this book argues, proposals for postnational constitutionalism not only fail to provide a plausible account of the changing shape of postnational law but also fall short as a normative vision. They either dilute constitutionalism's origins and appeal to 'fit' the postnational space, or they create tensions with the radical diversity of postnational society.

This book explores an alternative, pluralist vision of postnational law. Pluralism does not rely on an overarching legal framework but is characterized by the heterarchical interaction of various suborders of different levelsuan interaction that is governed by a multiplicity of conflict rules whose mutual relationship remains legally open. A pluralist model can account for the fragmented structure of the European and global legal orders and it reflects the competing (and often equally legitimate) claims for control of postnational politics. However, it typically provokes concerns about stability, power, and the rule of law.

This book analyses the promise and problems of pluralism through theoretical enquiry and empirical research on major postnational governance regimes, including the European human rights regime, the contestation around UN sanctions and human rights, and the structure of global risk regulation. Pluralism is more widespread than often thought, and it turns out to possess distinct advantages in a postnational setting characterized by fluidity, contestation, and deep-seated diversity. In this context, constitutional forms and ever firmer legalization risk producing serious friction, and pluralism's openness may well contribute to more stable, fair, and democratic governance structures over time.

Nico Krisch is a Professor of International Law at the Hertie School of Governance in Berlin.