Eric Stein Working Paper No 1/2009
Jan Kysela
Měnící se struktura právního řádu a jeho atributy
Cite as
Jan Kysela, "Měnící se struktura právního řádu a jeho atributy," Eric Stein Working Paper No. 1/2009, available at http://www.ericsteinpapers.eu/papers/2009-1Abstract
As a consequence of a whole range of phenomena, the idea of a legal order as a pyramid with one centre – the constitution, from which all layers of the legal order are derived, is being challenged. What we can see instead is parallel impact of legal systems of the internal, international and European origin, to which possible conflicts of territoriality and culturally defined personality of rights is added. “Polycentrism” is one of the new concepts offered for describing such a new reality, which bears with it replacing the hierarchical model of a pyramid with a network model. Here, it is no more the “higher” that affects the “lower” with derogating effects; it is more appropriate to consider “translating.” The emphasis on primacy in application on the one hand, and the discussion concerning conflicts of various legal systems’ claims for primacy on the other are both manifestations of this. Political and legal development cannot ignore concepts among those sovereignty is taken into particular consideration. The conception of C. Schmitt, who connects sovereignty with decision making in emergency situations or exceptions, seems viable. This construction is defensible also in the context of the enhanced European integration. The phenomenon of polycentrism is neither understood as value-oriented nor as definitive. It is enhanced by legal order’s lability.Keywords
heterarchy; hierarchy; interpretation of law; legal order’s lability; legitimacy; multiculturalism; polycentrism; legal pluralism; constitutional pluralism; structure of legal order; sovereigntyYou can download the paper here [pdf]
Zpět na seznam WP