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Constitutionalism, pluralism and the role of human rights in shaping the relations between legal orders

Pola Cebulak

In Asian Regional Integration Review, 2012, Vol 4, p. 89-109

In the period since the end of the Cold War, the different layers of law in the international arena have become more interlinked and interwoven. This shift might suggest a development towards a legal “melting pot” involving an increased cross-application of judicial norms stemming from different legal orders. In fact, judges are more and more often faced with cases involving legal provisions that are foreign to their legal orders. Hans Kelsen pointed out that “the power of state is no mystical force concealed behind the state or its law; it is only the effectiveness of the national legal order.” Hence, for instance, the Court of Justice of the EU has taken an active role in ensuring the effet utile of European law. This article discusses possible theoretical perspectives on the interactions between various legal orders in the international arena. The opposition between the dualist and monist conceptions provides a necessary basis for presenting their beyond-state-level counterparts—constitutionalism and pluralism. To introduce structural clarity into one’s view of those interactions, one can simplify and present two main opposing conceptual “camps” of the debate. However, the line does not in fact lie exactly at the level of differentiating the relations between legal orders within or beyond the state. One could use both the monist and dualist theories to explain the hierarchy of transnational legal orders while applying constitutionalism and pluralism on the purely national level. This simplification will be allowed here for two reasons: first, the national level is not the focus of this analysis; second, for a better understanding it is necessary to present the theories from their respective perspectives. The monist and dualist approaches seek to explain the interactions between norms stemming from different legal orders within the state, whereas constitutionalism and pluralism developed in the international context. As such, it appears necessary to differentiate between the European and the global levels. The key aspect of a pluralistic architecture of interactions between different legal orders in the international arena is the activation of judges; such a setup opens for them more possibilities for inspiration and support and thereby multiplies the possible ways of legitimizing their choices. Judges are working within a hybrid of national, regional and international legal norms that can be described as postnational law. Accepting the lack of a normative hierarchy on the global scene of postnational law involves judges taking on a greater role as actors ‘bargaining’ and shaping the interactions between legal orders.

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This project receives funding from the European Union's Horizon 2020 research and innovation programme under the Marie Sklodowska-Curie Grant Agreement No 722826.