A transnational take on krisch's pluralist structure of postnational law

European Journal of International Law

Volumn 23, Issue 2, 2012, Pages 565-582

  Shaffer, Gregory ^a  

^a UNIVERSITY OF MINNESOTA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84864952747     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chs029     Document Type: Article

References (65)

1. As Jeffrey Dunoff and Joel Trachtman likewise write, 'constitutionalization can respond [to fragmentation of international law] by providing centralized institutions or by specifying hierarchy among rules or adjudicators': Dunoff and Trachtman, 'A Functional Approach to International Constitutionalization', in J. Dunoff and J.P. Trachtman (eds), Ruling the World? Constitutionalism, International Law and Global Governance (2009), at 3, 8.
2. Krisch distinguishes 'foundational constitutionalism' from 'power-limiting constitutionalism', which he finds 'fail[s] to connect with the more radical promise connected with it [constitutionalism] historically': Krisch, at 298
3. The vision of a functional power-limiting constitutionalism is put forward by Dunoff and Trachtman
4. European Court of Human Rights, 50 Years of Activity: The European Court of Human Rights - Some Facts and Figures (2010), at 3, 12, 13, available at: www.echr.coe.int/NR/rdonlyres/ACD46A0F-615A-48B9- 89D6-8480AFCC29FD/0/FactsAndFigures_EN.pdf (stating that as of 1 Jan. , 389,197 applications had been allocated to a decision body and 253,458 applications had been declared inadmissible).2010
5. European Court of Human Rights, The European Court of Human Rights in Facts and Figures Approximately 119,300 of these applications were pending as of 1 Jan. 2011 (2012), at 8, available at: www.echr.coe.int/NR/rdonlyres/C99DDB86-EB23-4E12-BCDA-D19B63A935AD/0/ FAITS_CHIFFRES_EN_JAN2012_VERSION_WEB.pdf2012
6. Created by S.C. Res. 1904, 17 Dec. , available at: www.un.org/ga/search/ view_doc.asp?symbol=S/ RES/1904%282009%29.2009
7. M. Pollack and G. Shaffer, When Cooperation Fails: The International Law and Politics of Genetically Modified Foods (2009
8. See Shaffer, 'A Structural Approach to WTO Jurisprudence: Why Institutional Choice Lies at the Center of the GMO Case', NYU J Int'l L &Pol (2008) 1.
9. See, e.g., 'The Empire's New Clothes: Political Economy and the Fragmentation of International Law', 41 Stanford L Rev (2007) 595.
10. See G.J. Ikenberry, After Victory: Institutions, Strategic Restraint, and the Rebuilding of Order after Major Wars (2001).
11. See, e.g., Helfer, 'Regime Shifting: The TRIPS Agreement and New Dynamics of Intellectual Property Lawmaking', 29 Yale J Int'l L (2004)
12. See, e.g., J. Bohman, Democracy Across Borders: From Dêmos to Dêmoi (2010)
13. D. Archibugi, The Global Commonwealth of Citizens: Toward Cosmopolitan Democracy (2008)
14. De Búrca, 'Developing Democracy Beyond the State', Columbia J Transnat'l L (2008) 101.
15. The institutional facilitation of contestation and revisability are key criteria in contemporary democratic theory. See, e.g., P. Petit, Republicanism: A Theory of Freedom and Government (1999); Petit, 'Democracy, Electoral and Contestatory', 42 NOMOS (2002) 105; P. Rosanvallon, Counter-Democracy: Politics in an Age of Distrust (2008).
16. See, e.g., Cruz, 'The Legacy of the Maastricht-Urteil and the Pluralist Movement', 14 European LJ (2008) 389
17. A.M. Slaughter, A New World Order (2004), at 248-253.
18. Krisch writes affirmatively, '[t]his kind of pluralism does indeed "pose demands on reality", yet the demands are not institutionalized in an overarching legal framework' (at 104).
19. Walker, 'The Idea of Constitutional Pluralism', 65 MLR (2002) 317.
20. See Kumm, 'The Cosmopolitan Turn in Constitutionalism: On the Relationship between Constitutionalism in and beyond the State', In Dunoff and Trachtman (eds)
21. See, e.g., Maduro, 'Courts and Pluralism: Essay on a Theory of Judicial Adjudication in the Context of Legal and Constitutional Pluralism', In Dunoff and Trachtman
22. Halberstam, 'Constitutional Pluralism in Europe and Beyond', In M. Avbelj and J. Komarek, Constitutional Pluralism in the European Union and Beyond (2012), at 85.
23. Sweet, 'A Cosmopolitan Legal Order: Constitutional Pluralism and Rights Adjudication in Europe' 1 J Global Constitutionalism, (2012) 53
24. Stone Sweet conceptualizes the European human rights regime asa 'cosmopolitan legal order', which he defines as 'a transnational legal system in which all public officials bear the obligation to fulfill the fundamental rights of every person within their jurisdiction, without respect to nationality or citizenship
25. Sweet, 'Constitutionalism, Legal Pluralism and International Regimes', 16 Indiana J Global Legal Studies (2010) Art. 11. I thank Alec Stone Sweet for this point.
26. See, e.g., M. Delmas-Marty, Ordering Pluralism: A Conceptual Framework for Understanding The Transnational Legal World (2008).
27. This is not to say that non-Europeans having a close understanding of Europe do not write of the European experience in a constitutional pluralist vein
28. AG M. P. Maduro In Joined Cases C-402/05 P and C-415/05 Kadi et al. v. Council and Commission ECR I-6351.2008
29. M. Pollack and G. Shaffer, Transatlantic Governance in the Global Economy (2001)
30. Raustiala, 'The Architecture of International Cooperation: Transgovernmental Networks and the Future of International Law', 43 Virginia J Int'l L (2002) 1
31. Slaughter and Zaring, 'Networking Goes International: An Update', 2 Annual Review L &Social Science (2006) 211.
32. Sweet and Mathews, 'Proportionality Balancing and Global Constitutionalism', 47 Columbia J Transnat'l L (2008) 72
33. Hirschl, 'The Judicialization of Politics', In K.E. Whittington et al. (eds), The Oxford Handbook of Law and Politics (2008), at 119, 126-127
34. T. Ginsburg and M. Versteeg, 'The Global Spread of Constitutional Review: An Empirical Assessment' (manuscript on file).
35. See, e.g., R. Hirschl, Towards Juristocracy: The Origins and Cconsequences of the New Constitutionalism (2004)
36. J. Waldron, Law and Disagreement (1999).
37. Bourdieu created field theory (in the French original, théorie des champs) which examines social subsystems involving patterned sets of practices which rely intrinsically on historically derived systems of shared meanings. These fields of expertise consist of taken for granted beliefs, or doxa, which define the field's presuppositions. Bourdieu calls these field-specific sets of dispositions habitus. They define individual agency and make action intelligible. In Bourdieu's words, a habitus involves 'the forgetting of history that history itself produces': P. Bourdieu, The Logic of Practice (trans. Richard Nice, 1990), at 56 (originally published in French in 1980 as Le Sens Pratique). See also Bourdieu, 'The Force of Law: Toward a Sociology of the Juridical Field' (trans. Richard Terdiman),38 Hastings L Rev (1987 805-853
38. Guzzini, 'A Reconstruction of Constructivism in International Relations', 6 European J Int'l Relations (2000) 147, at 165-166
39. Applying Bourdieu to the study of international relations). The critical work of Michel Foucault could also be cited in a similar, more radical, critical vein: see, e.g., Foucault, 'Nietzsche, Genealogy, History', in P. Rabinow (ed.), The Foucault Reader (1986), at 76
40. M. Foucault, Discipline and Punish: The Birth of the Prison (1977) (trans. Alan Sheridan, 2nd edn, 1995) (describing how knowledge systems produce an internalized disciplinary power); and Smith, 'Positivism and Beyond', in S. Smith et al. (eds), International Theory: Positivism and Beyond (1996), at 11
41. Foucault's later work on genealogy sought to show how academic 'discourses' emerge 'not as a neutral result of scholarly enquiry, but as the direct consequence of power relations. In short, power is implicated in all knowledge systems').
42. See, e.g., Garth and Dezalay, 'Marketing and Selling Transnational "Judges" and Global "Experts": Building the Credibility of (Quasi) Judicial Regulation', 8:1 Socioecon Rev (2010) 113-123
43. (Transnational legal norms depend on 'the international circulation of experts and knowledge between the North and the South'); Y. Dezalay and B. Garth, The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American States (2002); and Dezalay and Garth, 'Introduction', in Y ezalay and B. Garth (eds), Global Prescriptions: The Production, Exportation and Importation of a New Legal Orthodoxy, at 1, 5 ('impacts differ according to the countries, the expertises, and the positions of the importers and exporters'). 2002
44. See, e.g., N. Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics and Public Policy (1994)
45. N. Komesar, Law's Limits: The Rule of Law and the Supply and Demand of Rights (2001).
46. Around half of the world's population lives in China, India, the US, Indonesia, and Brazil, in that order. See Central Intelligence Agency, The CIA World Factbook, available at: (giving the total world population and the population for the top 10 most populous countries, last updated 26 Jan. 2012).www.cia.gov/library/publications/ the-world-factbook/geos/xx.html
47. Cf. Shaffer, 'Transnational Legal Process and State Change', L &Soc Inquiry (2012) 1, And the rest of the symposium issue of Law and Social Inquiry (with empirical studies of corporate bankruptcy law in China, Korea, and Indonesia; patent law and competition law in South Africa; anti-money laundering law in Brazil and Argentina; and primary education law and policy in over 70 low- and middle-income countries).
48. Halliday and Shaffer, 'Transnational Legal Orders
49. Abbott, 'Strengthening International Regulation through Transnational New Governance', 45 Vanderbilt J Int'l L (2009) 501
50. Abbott and Snidal, 'The Governance Triangle: Regulatory Standards Institutions and the Shadow of the State',W. Mattli and N. Woods (eds), The Politics of Global Regulation (2009), at 44
51. G.-P. Calliess and P. Zumbansen, Rough Consensus and Running Code: A Theory of Transnational Private Law (2010
52. P. Zumbansen, Transnational Legal Pluralism, Transnational Legal Theory (2010).
53. As Tom Ginsburg and Mila Veersteeg write, '[b]y our account, some 38% of all constitutional systems had constitutional review in 1951; by , 72% of the world's constitutions gave courts the power to supervise implementation of the constitution and set aside legislation for incompatibility.. Arguably, this trend is one of the most important phenomena in late 20th and early 21st century government': Ginsburg and Veersteeg2011
54. See also Krisch, at 245 ('the ECJ's strong stance against the Security Council may also be due to a dependence. on national constitutional courts which might otherwise have stepped in to defend due process rights').
55. See S. Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (2006), at 3 ('The national is still the realm where formalization and institutionalization have all reached their highest level of development,' but 'the national is also often one of the key enablers and enactors of the emergent global scale'); S. Sassen, A Sociology of Globalization ( Cf. S. Sassen, Losing Control? Sovereignty in an Age of Globalization (1996), at p. xii ('globalization under these conditions has entailed a partial denationalizing of national territory and a partial shift of some components of state sovereignty to other institutions2007), at 46-56.
56. T. Halliday and B. Carruthers, Bankrupt: Global Lawmaking and Systemic Financial Crises (2009)
57. Shaffer, 'Transnational Legal Process
58. Delmas-Marty's work on pluralism, however, explores how pluralism can lead to order, including through 'harmonisation by approximation', and 'unification by hybridization' involving the melding of different 'ensembles' of law: see M. Delmas-Marty, Ordering Pluralism: A Conceptual Framework for Understanding the Transnational Legal World Krisch differentiates his perspective, noting, '[e]ven Mireille Delmas-Marty, the most influential French theorist of transnational legal pluralism, tames her initially radicalsounding vision by an eventual attempt to create order through overarching rules, softened by way of margins of appreciation and balancing requirements. Just as the later [Neil] MacCormick, Delmas-Marty seems to become afraid of the 'messy' picture she describes and clings to some degree of institutionalized harmony': Krisch, at 75.2008
59. Nourse and Shaffer, 'Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory?', 95 Cornell LR (2009) 61
60. The article also builds from 'philosophical pragmatism's premise that one cannot know one's ends until one assesses means because one's means open up new understandings of ends
61. See, e.g., L. Menand Pragmatism: A Reader (1997) (with readings from such diverse authors as Peirce, James, Dewey, Mead, Rorty, and Posner).
62. See Komesar, Imperfect Alternatives
63. He also notes, 'one would certainly not want all domestically entrenched interests to have a decisive impact on the global level; otherwise, cooperation would be seriously hampered': Krisch, at 185.
64. For a discussion of the relation of international law, legal pluralism, and different types of global public goods see Shaffer, 'International Law and Global Public Goods in a Legal Pluralist World' 23 EJIL (forthcoming 2012).
65. S. Barrett, Why Cooperate? The Incentives to Supply Global Public Goods (2007). The assessment of the tradeoffs of a pluralist structure would benefit from case studies focusing on global public goods such as climate stabilization and ozone layer protection.