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Beyond ConstitutionalismThe Pluralist Structure of Postnational Law$
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Nico Krisch

Print publication date: 2010

Print ISBN-13: 9780199228317

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780199228317.001.0001

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The Open Architecture of European Human Rights Law

The Open Architecture of European Human Rights Law

(p.109) 4 The Open Architecture of European Human Rights Law
Beyond Constitutionalism

Nico Krisch

Oxford University Press

Chapter 4 analyses the European human rights regime, often regarded as a prime example of constitutionalization beyond the state. At closer inspection, this description turns out to be misguided—the regime is better regarded as pluralist, as characterized by a heterarchical relationship between its constituent parts that is ultimately defined politically and not legally. The chapter traces the emergence and workings of this pluralist order through the interaction of the European Court of Human Rights with domestic courts in Spain, France, the European Union, and the United Kingdom. These cases not only show conflicts over questions of ultimate supremacy but also significant convergence and harmony in day-to-day practice. The analysis suggests that central characteristics of pluralism—incrementalism and the openness of ultimate authority—have contributed substantially to this generally smooth evolution.

Keywords:   human rights, European Convention on Human Rights, courts, supremacy, incrementalism, stability, pluralism, constitutionalism

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