Constitutionalism and pluralism: A reply to Alec Stone Sweet

N. Krisch
2013 International Journal of Constitutional Law  
Disputes are often most telling on what they are not about, on what they leave undisputed-the common ground on which the disputants stand. In the case of Alec Stone Sweet's review of my book, Beyond Constitutionalism: The Pluralist Structure of Postnational Law, this common ground is vast, and perhaps more so than a first look at his-thoughtful and direct-critique may suggest. Stone Sweet does not question the main theses of the book-namely, that we are faced with a pluralist legal order in the
more » ... European and global realms, and that pluralism is actually an attractive model. In a sense he suggests that (mostly) everyone is a pluralist now, and that disputes on how to understand and describe the pluralist order are in fact disputes within the family, not between pluralists and others. His approach is one of a "constitutional" pluralism, but it is explicitly pluralist in its main thrust. There is no single decision-maker, applying overarching conflict rules to settle the relationship of different layers of law in the global order. Instead, the different layers interact in an open context, structured in part by overlapping norms around which principled contestation, especially among courts, becomes possible. Pluralism has indeed gained much ground in recent years, as an analytical tool and as a normative vision, both in Europe and beyond. It has become prominent not only in European Union law, but also in public international law, private international law, European human rights law, and in the analysis of domestic legal systems. 1 Does this mean, as Stone Sweet suggests, that the contrast I focus on in the book-that between pluralism and constitutionalism-is mistaken, or that it builds up a "pallid strawman" in the form of a strong, "foundational" constitutionalism which nobody actually believes in? I don't think so. In my view, a much stronger form of constitutionalism than the one Stone Sweet and other constitutional pluralists defend still appeals to many, and perhaps increasingly so-and for good reason.
doi:10.1093/icon/mot010 fatcat:n3sgcfrgondflndp6dy5ym5zha