Beyond Constitutionalism

One consequence of the increase in interest in constitutions and constitutional law in recent years is a growing innovative literature in constitutional theory. The aim of Oxford Constitutional Theory is to provide a showcase for the best of these theoretical reflections and a forum for further innovation in the field.

The new series will seek to establish itself as the primary point of reference for scholarly work in the subject by commissioning different types of study. The majority of the works published in the series will be monographs that advance new understandings of the subject. Well-conceived edited collections that bring a variety of perspectives and disciplinary approaches to bear on specific themes in constituational thought will also be included. Further, in recognition of the fact that there is a great deal of pioneering literature originally wirtten in languages other than English and with regard to non-anglophone constitutional traditions, the series will also seek to publish English language translations of leading monographs in constitutional theory.

Under pressure from globalization, the classical distinction between domestic and international law has become increasingly blurred, spurring dem and for new paradigms to construe the emerging postnational legal order. The typical response of constitutional and international lawyers as well as political theorists has been to extend domestic concepts---especially constitutionalism---beyond the state. Yet as this book argues, proposals for postnational constitutionalism not only fail to provide a plausible account of the changing shape of postnational law but also fall short as a normative vision. they either dilute constitutionalsim's origins and appeal to `fit' the postnational space, or they create tensions with the radical diversity of postnational society.

This book explores an alternative, pluralist vision of postnational law. Pluralism does not rely on an overarching legal framework but is characterized by the heterarchical interaction of various suborders of different levels---an interaction that is governed by a multiplicity of conflict rules whose mutual relationship remains legally open. A pluralist model can account for the fragmented structure of the European and global legal orders and it reflects the competing (and often equally legitimate) claims for control of postnational politics. However it typically provokes concerns about stability, power, and the rule of law.

This book analyses the promise and problems of pluralism through theoretical equiry and empirical research on major postnational governance regimes, including the European human rights regime, the contestation around UN sanctions and human rights, and the structure of global riks regulation. Pluralism is more widespread than often thought, and it turns out to possess distinct advantages in a postnational setting characterized by fluidity, contestation, and deep-seated diversity. In this context, constitutional forms and ever firmer legalization risk producing serious friction, and pluralism's openness may well contribute to more stable, fair, and democratic governance structures over time.