New Directions in Comparative Law
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New Directions in Comparative Law

Edited by Antonina Bakardjieva Engelbrekt and Joakim Nergelius

This in-depth book explores the changing role of comparative law in an era of Europeanisation and globalisation. It explains how national law coexists and interacts with supranational and international law and how legal rules are produced by a variety of institutions alongside and beyond the nation-state. The book combines both theoretical and practically oriented contributions in the areas of law and development, comparative constitutional law, as well as comparative private and economic law.
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Chapter 7: European Constitutional Law: Its Notion, Scope and Finalities

Rainer Arnold


Rainer Arnold I. THE NOTION OF EUROPEAN CONSTITUTIONAL LAW 1. ECL in Various Perspectives European constitutional law (ECL) is not a confirmed, undisputed term. Mostly it is used for the primary law of the European Community (EC), written or also unwritten, such as the judge-made general principles with the function of Fundamental Rights and of the Rule of Law guarantees, either for its totality or for its basic norms. But this term could also be used for the whole of the national constitutional laws in Europe insofar as they correspond to the same or to similar features resulting from convergent concepts. A third version is that of three constitutional levels in Europe – national constitutional law, European Community law in its basics and the European Convention on Human Rights (ECHR) – which are, despite their independence, interacting with considerable convergences. In the following chapter, the third variant is used for qualifying ECL in a narrow sense, a concept which takes into account the numerous processes of mutual influences of these three levels and therefore complies with legal reality more than the two other versions (Arnold, 1995). 2. The Term ‘Constitutional’ Constitutional law is traditionally used for the basic legal order of a state (Grimm, 1995). If we regard ECL, in part, as a matter of plurinational bodies, it is indispensable to justify why the term ‘constitutional’ can be shifted from the state to the pluristate levels. A functional approach is indispensable: if a document at the EC side fulfils the same functions...

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