Reconciling Different Legal Spheres in Theory and Practice: Pluralism and Constitutionalism in the Cases of Al Jedda, Ahmed and Nada
20.2 Maastricht Journal of European and Comparative Law 2013, pages 218‐240
35 Pages Posted: 20 Oct 2013
Date Written: October 19, 2013
A detailed analysis of four judicial responses to extreme pluri-contextual settings, the House of Lords’ and the European Court of Human Rights (ECtHR)’s rulings in Al-Jedda, the UK Supreme Court’s judgment in Ahmed, and the ECtHR’s recent ruling in Nada, demonstrates that all three courts relied on elements of pluralist and constitutionalist logic. Elements of institutional hierarchy in international law are balanced against considerations that can be understood as substantive constitutional concerns. Sometimes their effects are counteracted by blunt pluralist claims. Radical pluralism and state-like constitutionalism are the two extreme poles on one scale. Both are ideal types and cannot exist in their pure form. The analysis further confirms the increased power of the judiciary, which, when determining the applicable normative framework, ultimately makes a choice between competing authorities representing competing values. ‘Communicative’ pluralism may contribute to the emergence of a shared frame of reference and ultimately to a shared understanding of the importance of certain substantive values.
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