Krisch, Nico
(2009)
The case for pluralism in postnational law.
LSE law, society and economy working papers (12-2009).
Department of Law, London School of Economics and Political Science, London, UK.
Abstract
As the divide between domestic and international law becomes blurred, paradigms for the structure of the new, postnational legal order remain elusive, on both the analytical and the normative plane. In this paper, I inquire into the normative status of two main candidates, constitutionalism and pluralism. The constitutionalist ideal of a coherent, hierarchically structured order in a framework defined by law is often seen as an attractive goal also for postnational politics, but on closer look it turns out to face similar problems as in domestic divided societies, especially with respect to power, integration and the rule of law. Pluralism, on the other hand, is often regarded as better suited to conditions of radical diversity as they prevail in the postnational realm. The openness of legal relations between different parts of a political order is seen to foster greater adaptability, responsiveness to contestation and an ability to steer a path between competing (and equally deficient) supremacy claims. Yet while these are important virtues, I argue that a defence of a pluralist postnational law has to find its starting point elsewhere: in the public autonomy of citizens in the definition of their legal and political framework. Such an approach shifts the focus to social attitudes and identities, to the multiplicity of loyalties and allegiances characteristic of the global polity. These do indeed appear to be better reflected in a pluralist than in a constitutionalist order.
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