Who is Afraid of Radical Pluralism? Legal Order and Political Stability in the Postnational Space

Authors


  • I am grateful for comments by participants at a conference on Neil MacCormick's work at the European University Institute in May 2010, in the Forum on Legal & Political Theory at the London School of Economics in November 2010, and in the constitutional law colloquium at Universitat Pompeu Fabra, Barcelona, in January 2011. I especially wish to thank Michael Zürn, Neil Walker, and Neus Torbisco Casals for their comments on earlier drafts. I am also indebted to Dana Trif for her research assistance. The paper builds, in part, upon ideas developed in my recently published book; Krisch 2010.

Abstract

Constitutional pluralism has become a principal model for understanding the legal and political structure of the European Union. Yet its variants are highly diverse, ranging from moderate “institutional” forms, closer to constitutionalist thinking, to “radical” ones which renounce a common framework to connect the different layers of law at play. Neil MacCormick, whose work was key for the rise of constitutional pluralism, shifted his approach from radical to institutional pluralism over time. This paper reconstructs the reasons for this shift—mainly concerns about political stability that also underlie many others' skepticism vis-à-vis radical pluralist ideas. It then seeks to show why such concerns are likely overdrawn. In the fluid, contested space of postnational politics, a common, overarching frame is problematic as it might inflame, rather than tame, tensions. Leaving fundamental issues open along radical pluralist lines may help to work around points of highly charged contestation and provide opportunities for resistance from less powerful actors.

Ancillary