International Journal of Constitutional Law Advance Access originally published online on July 7, 2008
International Journal of Constitutional Law 2008 6(3-4):397-413; doi:10.1093/icon/mon015
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This article appears in the following International Journal of Constitutional Law issue: SYMPOSIUM: constitutionalism in an era of globalization and privatization [View the issue table of contents]
Pluralism, direct effect, and the ultimate say: On the relationship between international and domestic constitutional law
* Director, Max Planck Institute for Comparative Public Law and International Law, Heidelberg; email: bogdandy{at}mpil.de.
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Abstract |
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The article addresses the question of whether the metaphor of the "legal pyramid" as the structural representation of the relationships between international and domestic law should be deconstructed on account of the internationalization of constitutional law. On a theoretical level, it argues that the pyramid is a concept, linked to Kelsenian monism, which has outlived its usefulness. But dualism should also be overtaken by a theory of legal pluralism. On a doctrinal level, the linkage of the orders by the doctrine of self-executing international norms should be reconstructed and understood as the balancing of constitutional principles. A third thesis refers to the value judgments implicit in the question, holding that it should be answered within the domestic constitutional process, according to the experience, expectations, and convictions of the various constitutional constituencies. Given the state of international law, it would be preferable to have the capacity legally to limit the effect within the domestic legal order of a norm or an act under international law if that norm or act conflicts sharply with constitutional principles