A Transnational Take on Krisch's <I>Pluralist Structure of Postnational Law</I>

Abstract

This essay critiques Nico Krisch’s Beyond Constitutionalism: The Pluralist Structure of Postnational Law. The book’s primary foil is the turn to rethinking the international legal order in constitutionalist terms. Its contrasting normative vision is a postnational, pluralist one in which there is no legal center or hierarchy. This vision, although less ambitious than the constitutional program, is nonetheless quite radical, and shares more with most constitutionalist visions than it acknowledges. Krisch’s critique of his constitutionalist foil could be more radical than it is, and the essay provides arguments for such a critique. Nonetheless, the essay finds that Krisch’s postnational vision is also too radical for the world outside of Europe in being grounded in a European experience, as reflected in his case studies. The article contends that a framework addressing transnational legal ordering in which states continue to play a central role is superior given the ongoing centrality of the nation state in governance. The essay also finds that Krisch’s normative framework fails to address variation in its evaluation of institutional alternatives in which some hierarchy at times is preferable. Krisch’s vision is pluralist all the way through, while there are strong pragmatist arguments to be more context-specific in prescriptions.