Heterarchical constitutional structures in the European Legal Space

Abstract

The article focuses on the constitutional linkages between national legal orders, the EU legal order, and the ECHR Convention system. The first, and the main, question the article addresses is how these intertwined constitutional structures can be described. This article shows that the interrelationship of these legal orders could be best described as heterarchical as opposed to hierarchical. The article also tries to tentatively examine the meaning and influence of these heterarchical constitutional structures. The concept of heterarchy is used to illustrate the tension between constitutionalism and pluralism. Where constitutionalism builds a pre-set foundation and framework for governance, pluralism challenges hierarchical constitutional structures and highlights tension at the interfaces between different legal orders. The concept of heterarchical constitutional structures is used to describe those structures pertaining between legal orders which enable those legal orders to flexibly function together without predetermining any hierarchical relation between the orders. Thus heterarchical constitutional structures can be described as communicative in nature. The structures could also be described soft by their nature since they describe, but do not determine relations between different legal orders.