Nico Krisch, BEYOND CONSTITUTIONALISM: THE PLURALIST STRUCTURE OF POSTNATIONAL LAW Oxford: Oxford University Press (www.oup.com), Oxford Constitutional Theory, 2010. xxiv + 358 pp. ISBN 9780199228317. £50.

Pages291-293
Published date01 May 2012
Date01 May 2012
DOI10.3366/elr.2012.0112

How should we understand the role of law in a post-national constellation? Contemporary legal arrangements increasingly challenge traditional foundations of international law, such as the pivotal role of state consent, the divide between international and domestic spheres, the boundaries between public and private or the range of interests protected by transnational law. However, while there is wide agreement that international law is no longer just about the relations between sovereign states, there is much less agreement about possible alternative conceptual schemes that could make sense of the foundational changes in the transnational order. During the past few decades at least two competing approaches have been put forward: constitutionalism and pluralism. Constitutionalism is often portrayed as combining an emphasis on the unity of law with mechanisms to divide and control the exercise of (political) power. Pluralism, on the other hand, questions the possibility and desirability of an overarching legal order that provides unity and that contains and controls politics via legal rules. Instead, it accepts a plurality of competing and overlapping orders and concentrates on the different ways in which these legal orders (can) interact.

Nico Krisch unambiguously opts for a pluralist reading of the post-national constellation, as may already be inferred from the title of his book, Beyond Constitutionalism; The Pluralist Structure of Postnational Law. His book gives an insightful overview of some different strands in domestic constitutionalist thinking and convincingly shows how constitutionalism became increasingly bound up with the modernist political project of taming allegedly irrational forces such as history and tradition through man-made constitutional schemes. An illustrative example provided by Krisch is Alexander Hamilton's defense of the constitutional project as “an attempt at ‘establishing good government from reflection and choice’ as against the old dependence on ‘accident and force’ ” (48). This so called ‘foundational constitutionalism’, Krisch argues, cannot be translated into the post-national realm; creating continuity between domestic foundational constitutionalism and postnational law is both unrealistic and undesirable. Post-national constitutionalism therefore has to rely on much less ambitious forms of constitutionalist thinking that emphasize the need to limit the exercise of power through legal rules.

According to Krisch...

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