The Structure of constitutional pluralism: Review of Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Post-National Law

Abstract

Nico Krisch’s new book, Beyond Constitutionalism: The Pluralist Structure of Post-National Law (BC), is a major contribution to the field of legal pluralism as applied to international legal regimes.1 In clear and accessible prose, BC develops a nuanced account of the structural features of global law from a wide range of carefully considered normative positions and empirical claims, and provides detailed case studies of pluralism in action. For readers of I·CON, I would regard it as essential reading. Given space limitations, my focus will be on the main disagreements I have with BC. Krisch stakes out complex positions, often through an “on the one hand [x], but on the other [y]” style of analysis that anticipates objections. My criticisms do not always capture the subtleties of the arguments and, for the sake of debate, are sometimes more sharply drawn than warranted. I will make three points. First, Krisch’s conclusions are heavily dependent upon a theoretical construction—a supposed dichotomy between “constitutional” and “pluralist”—that is, in fact, a false one. Second, “constitutional pluralism” is a structural feature of the national legal orders to which BC pays the most attention (European), belying the dichotomy. Third, the case studies in BC provide empirical support for an alternative view: at least in some domains, a rights-based constitutional order is being constructed on pluralist foundations. Driving much of the analysis of BC is a supposed distinction between two types—the constitutional and the pluralist—which Krisch characterizes as “competing models” (p. 226) and “true alternative[s]” (p. 71). BC sustains discussion of only one mode of constitutionalism, embodied in what he labels the “foundational” and “comprehensive” constitution. In its liberal-democratic guise, the constitution constitutes state and polity, and provides the normative underpinnings for constructing and challenging the polity’s legitimacy over time. The foundational constitution is assumed to be complete: it establishes a single “overarching legal framework” (p. 23) and “comprehensively determin[es] the structure, processes, and values” of the system (p. 53). In contrast to pluralism, constitutionalism entails “clear cut hierarchies” (p. 103), stable Grundnormen, settled “rules of recognition” (pp. 11, 72, 74), and “ultimate conflict norms” and “rules” (pp. 293, 296) whose purpose is to enable a designated authority to resolve conflicts among norms and institutions effectively. Pluralism is explicitly conceptualized in opposition to constitutionalism. Whereas constitutionalism is related to “depoliticization,” and the desire “to tame politics” through legal rules (p. 69), pluralism is about “politics” and “political deliberation” but not the “rule of law” or “rule-based processes,” (pp. 23, 69, 277). What is crucial is how Krisch applies these distinctions to the relationship between treaty-based systems and national legal orders, the central topic of the book. Krisch sums up his position as follows: Constitutionalism and pluralism are distinguished . . . by the different extent to which [each] formally link[s] the various spheres of law and politics. While pluralism regards them as separate in their foundations, global constitutionalism, properly understood, is a monist conception that integrates those spheres into one. As a result, rules about the relationship of national, regional, and global norms are immediately applicable in all spheres, and neither political nor judicial actors can justify non-compliance on legal grounds (p. 242; emphasis added).2 Thus, global constitutionalism can only find its expression in a strong form of hegemonic monism.3 The resulting model is indistinguishable from federalism. “A constitutionalist setting needs to define hierarchies between the polities,” Krisch claims, in order “to integrate them into a common whole,” a task that must include the promulgation of clear rules delineating the respective competences of all levels of governance, as well as fixing the “rules for the amendment of the overall constitution” (p. 275). I reject Krisch’s constitutionalism–pluralism dichotomy on both theoretical and empirical grounds. To get to the notion of “constitutional pluralism” one must specify what is simultaneously constitutional and pluralistic about the structure of a legal system.4 When considering the interface between international regimes and national legal orders, scholars typically identify, as the basic scaffolding of a constitution, jus cogens norms, other substantive fundamental rights, standards of procedural due process, and access to justice.5 These norms find expression in multi-lateral and regional treaties, are firmly supported by opinio juris, and overlap fundamental rights inscribed in the vast majority of national constitutions.6 What makes the system “constitutional” is an overarching normative structure:7 the code of rights that judges and other officials are under a legal duty to enforce; and a set of shared techniques that national and international judges have developed to adjudicate rights, in dialogues with one another. At the same time, the distribution of authority within this presupposed constitution is pluralistic: the system is comprised of discrete hierarchies, national and treaty-based, each of which has an autonomous claim to legitimacy. Sovereignty—the authority to enforce fundamental rights—is “decentralized,”8 not least, in that no “ultimate conflict rule” or “final authority” to resolve conflicts exists. Before turning to empirics, let me clarify the nature of the disagreement. First, to my knowledge, no one in the field would contest the basic elements of Krisch’s concept of pluralism: by definition, under conditions of pluralism, there is no “single decision-maker” applying “overarching conflict rules,” who will have the final word on many important legal questions (p. 296). Understanding legal pluralism, we would presumably agree, requires the analyst to take into account multiple vantage points at once, including the respective internal legal perspectives of actors operating in autonomous legal orders. Second, Krisch argues from a position that makes “constitutional pluralism” an oxymoron, a theoretical impossibility, whereas others in this same field have staked out a rights-based version of constitutionalism that accommodates pluralism.9 For Krisch, normative authority flows exclusively from hierarchy, rather than being grounded (my view) in the intrinsic legitimacy, binding nature, and integrating properties of fundamental rights themselves. Third, I reject Krisch’s law–politics distinction. Rights politics under conditions of pluralism are today heavily structured by law, legal discourse, and other rule-like norms and procedures, and they have steadily built new legal practices that serve to manage pluralism. As the empirics in BC show, rights politics and constitutional pluralism have been co-constitutive of one another. We have not moved “beyond constitutionalism,” rather, the age of global constitutionalism has barely begun. The false dichotomy is fully exposed when we examine the formal “architecture” of rights-based constitutionalism in Europe (ch. 4).10 For Krisch, “constitutionalism” implies a focal point of “ultimate authority” (p. 103), whereas “pluralism” accepts “conflicting claims to ultimate authority” (p. 70). When it comes to rights protection, however, many domestic constitutional orders in Europe are pluralistic. Either we have to accept that these national systems are no longer, or never were, truly constitutional, or the theoretical framework of BC must be rejected. As has been extensively documented,11 not only have conflicting authority claims between national high courts not been resolved, they have generated the kind of inter-jurisdictional, and jurisgenerative, politics that Krisch associates with pluralist orders. To illustrate, Krisch (pp. 14–17) argues that three basic strategies are available to a jurisdiction (X) when it is threatened by the lawmaking and supremacy claims of an external jurisdiction (Y), when Y seeks a change in how X takes decisions and makes law. First, X can pursue “containment,” by working to “limit the impact” of Y, in order to maximize its own autonomy and minimize disruption to standard ways of doing things. Second, X can seek to “transfer” the underlying logics of its ways to Y, thus lowering the costs of adjustment. Third, X can “break” with its established repertoire and, in effect, embrace or leverage pluralism as a means of increasing its own relevance, flexibility, and capacity to constrain Y in the future. Krisch developed the framework to analyze pluralist politics but, in fact, it neatly applies to rights politics within national orders that possess multiple, functionally differentiated high courts (the majority in Europe). Consider bids on the part of constitutional courts to “constitutionalize” adjudication in the ordinary (non-constitutional) courts, through promoting the direct effect of rights. It is important to stress that this process, which is ongoing, is analogous to the Court of Justice of the European Union’s (CJEU) move to “constitutionalize” the EU through its doctrines of supremacy and direct effect. In Western Europe, constitutionalization has gone furthest in Germany and Spain, in the form of delicate accommodations forged by inter-court conflict and dialogue. Nonetheless, the supreme courts continue to marshal significant “containment” operations,12 and their “transfer” efforts often succeed. In Italy, the Italian Court’s bid for supremacy failed: a “war of judges” ended in a settlement that, in effect, codified pluralism. Under the so-called “doctrine of the living law,” the Supreme Court (Cassazione) has de facto the “last word” on statutory interpretation and application, accepting only the “persuasive authority” of the ICC’s jurisprudence.13 In France, the Constitutional Council has no formal means of imposing its rights interpretations on the Supreme Court (Cassation) or Supreme Administrative Court.14 Each of the three high courts is autonomous in its domain, and both supreme courts have positioned themselves to enforce EU rights and the European Convention of Human Rights (ECHR), even against statute. The outcome comprises a hugely important “break” with traditional separation of powers doctrine (the prohibition of judicial review of statute), while constituting a pluralist order within the French legal system. In Central and Eastern Europe, too, many national supreme courts have refused to accept the binding interpretive authority and supremacy claims of the constitutional courts.15 The Polish courts have negotiated their own version of the Italian “living law” solution; and in the Czech Republic, the Supreme Court provoked a “war of judges” when it “openly revolted” against the Constitutional Court. In his empirical study of this topic, Garlicki (a former judge of the Polish Constitutional Court and the ECHR Court) concludes: “constitutional courts appear as weaker participants . . . and, in case of conflict, they are not always able to deliver that last word.” Indeed, for constitutional judges, a strategy of “dialogue and persuasion” has been more effective than have efforts to prevail in an “open conflict” about ultimate authority.16 The development of European rights has further consolidated rights pluralism within national orders. Today, one finds multiple sources of rights that are judicially enforceable against all conflicting infra-constitutional legal norms, including statute; there are multiple high courts that enforce these rights; and often there is no agreed upon conflict rule or procedure to settle conflicts of norms and authority. In most national legal systems, three such sources of rights—the national constitution, the EU treaties, and the ECHR—overlap. Individuals have a choice of which source to plead, and judges have a choice of which right to enforce. Ordinary judges may seek to limit the impact of the jurisprudence of the European courts; but they may also prefer to apply it, rather than domestic constitutional case law, in order to enhance their own authority and subvert that of constitutional courts. The German labor courts, for example, have partnered with the (CJEU) to raise German standards of rights protection in employment law, regaining the authority they had lost to German Federal Constitutional Court (GFCC), which has been steadily marginalized. Indeed, the German labor courts have invested heavily in the development of EU rights, as a means of cajoling the GFCC to change its (less-progressive) positions.17 Authority conflicts between high courts within domestic systems have long been a primary source of pluralist interactions between the CJEU and national constitutional courts (a fact Krisch largely ignores in chapter 4). To take a recent, dramatic example, in 2010, the Czech Constitutional Court declared a part of the CJEU’s ruling in Landtová to be ultra vires under Czech constitutional law, a first in the EU. The ruling was an attempt to discipline the Supreme Administrative Court, which had sent the Landtová reference to the CJEU in the first place. In response, the Supreme Administrative Court denied that it was bound by the Constitutional Court’s decision, and referred the matter to the CJEU, clearly indicating that it disagreed with the Constitutional Court on both the merits and the authority claim (the case is still pending before the CJEU). This is domestic constitutional pluralism in action, as structured by the legal enmeshment of European and national systems of rights protection. Krisch analyzes such authority conflicts as if they were primarily between a European court and a national constitutional court, thus missing an essential part of the story. With respect to the ECHR, all 47 full members of the Council of Europe have now incorporated the Convention (through constitutional provision, legislative act, or judicial decision) in a form that provides for the judicial review of state acts, including statute, under the ECHR.18 In all but two states (Ireland and the UK), judges must refuse to enforce statutes judged to be incompatible with the ECHR. The domestication of the ECHR has diffused judicial review powers with respect to rights claims to all national judges, and institutionalized constitutional pluralism at the domestic level. In Belgium, the Constitutional Court has that the ECHR but infra-constitutional which the Supreme Court to that the ECHR its autonomy the Constitutional Court. courts are in their respective domains, but neither can its will on the Krisch such a “constitutional” or In the Italian Constitutional Court a strong that Italian judges are to national law in of the ECHR and, a conflict is to the matter to the ordinary judges this while their own authority to refuse to apply a on grounds of with the In the of a which is to the of the the has no means of its own case law. In France, the and the de facto of rights is the ECHR, not the national constitution, and in and much of Eastern and Europe, new of rights were on the but the point be national rights protection in Europe today is both constitutional and pluralistic. The that Krisch to the hierarchies, conflict final or to the of his In chapter Krisch a a whose on the constitutionalism–pluralism dichotomy. the were a constitutional he claims, we would to find a European rights law with the ECHR at its (p. one finds pluralism. In with his basic Krisch by national constitutional courts to supposed claims of the CJEU or the Court as against the “constitutional (pp. In fact, such in of the constitutional pluralist constitutionalist pluralist would a constitutional court to by formally the national constitutional order to the constitutional judges to their own supremacy within their own domain, and to in the politics of pluralism, including both and with the European courts and their own national supreme courts. This is, in fact, what has While Krisch he all but ignores the of “transfer” and even when has been by the same ruling Thus, he the only in of BC is on the fact that, in this same decision, the German Court a clear “break” with establishes a strong that all German judges are to apply the Court’s jurisprudence when it is on in including when is the only to a of the fundamental in the The ruling also the constitutional Individuals can now a of German basic that or to properly take into account the European Court’s case law, an by the Constitutional have further the of the Convention at The support a about European rights politics that to be with BC. Given formal in the (the of the Court’s case law within national orders will the constitutional of the overall and the pluralism of domestic systems of rights protection. This is, in fact, what is in most BC three detailed case studies of pluralism that, in my provide strong empirical support for the of constitutional The that a pluralist constitution can be built through interactions between autonomous legal orders. The claim to the the more are the rights-based interactions between different legal orders, the more it will be that a constitutional jurisprudence of pluralism will and a legal structure to these Whereas Krisch the pluralism of European rights protection in chapter it is also clear that his discussion is also about in a as Krisch (pp. constitutional stress of such as judicial and other of What about the case studies in and of BC on the that the Council developed the on the in Krisch the of are and for and that only a are to (pp. Whereas the Council had all but rights other the various rights as well as a of national courts the for to provide with due process, including the means of challenging their on the and access to an judicial authority. The chapter with an analysis of the CJEU’s which EU to review under EU fundamental rights, and the In response, the Council an to and to make formal on for The empirics of this case provide strong support for the constitutional pluralist which the structure of rights, and for rights-based conflict into constitutional Under this the of the on “constitutional” features when to it on rights grounds before and courts. courts and the CJEU fundamental rights in both national, regional, and international law, and a style to In Krisch’s judges are the central of the pluralist which he in of the and of international and national levels of (pp. as BC the extent of pluralist to be on the of rights and other constitutional Indeed, the would state that of the CJEU, at the of and to the of a and process, to the . . . of the of the BC was for of the to as Krisch had (pp. In the Court of the EU a it would in of the within the of the the and long the by the clearly to of effective judicial The the at while as the provoked by The established by the Court neither for judicial procedure for review of decisions of the nor for a to that be available to the in order to to The also the fact that an would within the that is, an to an from the In of and under from and other the Council the of the codified procedures, and with and the of the to will now prevail there is not to it, in which case states further are if the is to be than two the of the on Human Rights and While that the Council to and had due process, that the new system still not international rights standards due or to a strategy on the part of courts long as due is not at the when or as national European courts will to judicial review over the national the ended by more if by the would make it that national or European courts to the procedure of the before their jurisdiction in to the national or European To the has resulting in decisions to the one and one (the are the Council the who had the European courts as well as national This is but the now has a The is also about The how conflict the GFCC and the over supremacy claims serve to rights-based constitutionalism in Europe, the fact that supremacy conflicts were never firmly Krisch style as a for the and norms” (pp. that are for the of rights-based pluralism within when rights are not central to pluralism, the of constitutional is how in and European to and generated in response, Krisch European courts are now with law in this the fact that the CJEU had that the do not possess direct effect within the EU such interactions may take on constitutional for now they to on grounds. as in his review of most global and standard setting in such as and is today generated through that the of and state While much of is pluralist in most of it is not constitutional in BC is the most important on the development of legal pluralism at the of not international regimes and national legal orders. Given the my focus has been on the constitutional of the book. I have three main points. First, the dichotomy is a false one. now legal systems as both constitutional and pluralistic for of empirical Second, when it comes to rights protection, most domestic constitutional orders in Europe are in fact pluralistic. As Krisch legal pluralism and authority conflicts often hand in and we find both within national constitutional orders. Third, the notion of “constitutional pluralism” the in BC than the framework from the dichotomy. The provides strong support for rights-based constitutionalism when rights in fact, on the and when courts, are major as one would we find of constitutional pluralism when rights are not in and when courts are not the main