Arnold, Rainer --- "European Constitutional Law: Its Notion, Scope and Finalities" [2010] ELECD 118; in Bakardjieva Engelbrekt, Antonina; Nergelius, Joakim (eds), "New Directions in Comparative Law" (Edward Elgar Publishing, 2010)

Book Title: New Directions in Comparative Law

Editor(s): Bakardjieva Engelbrekt, Antonina; Nergelius, Joakim

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848443181

Section: Chapter 7

Section Title: European Constitutional Law: Its Notion, Scope and Finalities

Author(s): Arnold, Rainer

Number of pages: 9

Extract:

7. European constitutional law: its notion,
scope and finalities
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 consti-
tutional 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 real-
ity 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 ...