Pluralising Constitutional Pluralism

Cormac S. Mac Amhlaigh 

University of Edinburgh - School of Law

April 8, 2016

N. Roughan and A. Halpin (eds) In Pursuit of Pluralist Jurisprudence (Cambridge University Press, Forthcoming) 

Edinburgh School of Law Research Paper No. 2016/10 

Abstract:      

This chapter addresses a relatively neglected area of the burgeoning literature on constitutional pluralism; its ‘methodological monism’. Virtually all accounts of constitutional pluralism assume that one model or framework of constitutional pluralism can account for and/or legitimise interacting and conflicting legal orders in a global context. Yet, the chapter argues, this methodological monism is incompatible with constitutional pluralism’s reliance on the statements of legal officials, both state and supra state, in the development of models of constitutional pluralism. Within a ‘global disorder’ of legal orders lies a ‘global disorder’ of legal officials and a concomitant ‘global disorder’ of suprastate claims of legal authority and effectiveness which impacts upon how legal orders interact and conflict. In this light of this, constitutional pluralism, particularly in its explanatory guise, cannot hope to capture the state of the global disorder of interacting legal orders if it insists upon one model to explain them all. Contrasting the claims of the Courts of the European Union and European Convention of Human Rights, the chapter shows how different models of constitutional pluralism are necessary to explain different interactions and conflicts between legal orders. It concludes, therefore, that constitutional pluralism itself needs to be pluralised.

Keywords: Constitutional pluralism; post national law; transnational legal theory; EU law; ECHR law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2760986