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A Cosmopolitan Legal OrderKant, Constitutional Justice, and the European Convention on Human Rights$
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Alec Stone Sweet and Clare Ryan

Print publication date: 2018

Print ISBN-13: 9780198825340

Published to Oxford Scholarship Online: June 2018

DOI: 10.1093/oso/9780198825340.001.0001

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Constitutional Pluralism and Transnational Justice

Constitutional Pluralism and Transnational Justice

Chapter:
(p.73) 3 Constitutional Pluralism and Transnational Justice
Source:
A Cosmopolitan Legal Order
Author(s):

Alec Stone Sweet

Clare Ryan

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198825340.003.0004

In Europe, a cosmopolitan legal order was instantiated through the combined impact of Protocol no. 11 of the ECHR (1998), and the incorporation of the Convention into national legal systems. As a result, two processes—(i) the evolution of constitutional pluralism at the national level; and (ii) the development of rights protection at the transnational level—became causally connected to one another. The first undermined traditional models of domestic orders wherein the notions of constitutional unity and centralized sovereignty reinforced one another. The second process created a multi-level legal system whose effectiveness depends on the extent to which the European Court is able to induce and sustain the cooperation of national courts and officials. The constitutionalization of the proportionality principle, at both the domestic and transnational levels, provided a doctrinal interface for inter-jurisdictional dialogue, and the collective enforcement of the UPR.

Keywords:   cosmopolitan legal order, ECHR, national legal systems, constitutional pluralism, transnational justice, supremacy of EU law, decentralized sovereignty, constitutional dialogues, proportionality, Wednesbury unreasonableness, European Court, domestic courts

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