Abstract
Tom Flynn’s excellent book, The Triangular Constitution, is an insightful contribution to constitutional theory. It focuses on transnational constitutionalism, and the intermingling of national and international law, and explores these topics by means of a detailed case study of Ireland. He seeks to deeply critique and ultimately redeem theories of constitutional pluralism. I believe the critique to be very effective, but the attempt at subsequent improvement less so. For me, the book works best as a form of constitutional anti-theory: showing the limits and pitfalls of theory and does not need to offer prescriptions.
Metaconstitutionalism and interface norms
Flynn describes the book as a work of ‘applied constitutional theory’, seeking to test and expound constitutional theory by comparing its postulates to practice. The constitutional theory in question is constitutional pluralism, the idea that various competing national and international ‘constitutional’ frameworks are not hierarchically structured but rather exist in a heterarchy. No order is predominant or supreme; they are interrelated and are resolved against each other.
In particular, Flynn focuses on ‘metaconstitutionalism’, a subfield of constitutional pluralism, pioneered by Neil Walker, among others, that tries to offer a set of metarules, or a normative framework, that can explain and guide the resolution of conflicts between these constitutional systems. This offers ‘interface norms’—principles we can use to guide the resolution of conflicts—that will help us integrate plural constitutional frameworks. These concepts are teased out in great detail in the book’s lengthy first chapter.
Flynn’s case is that the literature on interface norms suggests that they are universal and can be applied across contexts, in a universal manner, and that this is misplaced. The details and local factors matter, and interface norms change based on the plural legal orders involved and the institutional actors that are at their interface.
The triangular constitution of the title is the three-part relationship between the state constitution, the law of the European Union (EU) and the European Convention on Human Rights (ECHR). This encompasses both the ‘vertical’ relationships between the Union and Convention and their members and the ‘horizontal’ relationship between the Union and Convention. It presents a fascinating case study, because, as Flynn notes, ‘the legal orders of the EU and the Council of Europe have intermingled with, infiltrated, and—in places—supplanted state centred law to an unprecedented degree’ (p. xxix).
The case of Ireland
Flynn chooses to focus on one jurisdiction where this triangle comes clearly into focus: Ireland. This methodological choice might be controversial, as the argument relies on an ‘n’ of 1, a single example. But Ireland is an interesting case study. It has a long and complicated history of EU integration, is a peripheral state (geographically and politically) in the scheme of the EU and has an unusual domestic incorporation of the ECHR. Moreover, as Flynn argues, detailed examination of a single jurisdiction and its interfaces is more likely to show us something interesting than surface level cherry-picking from many jurisdictions.
But most importantly, this choice is defensible because, in essence, Flynn’s core thesis is a negative one: that the way that pluralist constitutional orders’ interface norms are not universal but are contingent and local. A single example that shows local specificity and even eccentricity in its interface with these systems is enough to establish a prima facie case for this thesis. It can be argued that the example is a case of misapplication of universal norms. But this can always be argued, no matter how great the data set. Universalists can always claim that, done right, their principles can apply across the board, and counterexamples are just room for improvement. The only thing one can do in the face of this is highlight examples that illustrate the point and hope to persuade rather than prove.
The book does this through an interesting and thorough account of the Irish legal order and its complex arrangements on European integration and implementation of the ECHR. Its second chapter charts the gradual ‘opening’ of the closed Irish constitutional order to the influence of EU law and the ECHR.
Flynn argues that, while in practice EU law is superior to domestic law, the arrangement is not simply hierarchical, and Irish constitutional law has set the terms of integration of EU law. This is most notable in the Constitution’s express acknowledgement and recognition of EU law and its supremacy, and in the case of Crotty v An Taoiseach (1987) IR 713, which required that any new powers of government given to the EU must be authorised by a constitutional change referendum. The hierarchical appearance is only skin deep, the reality is more complicated and the interface norms are shaped substantially by the contingent features of Irish constitutional text and Irish constitutional law.
The integration of the ECHR is similar and yet different: integrated sub-constitutionally via the ECHR Act 2003, its interface norms are legislative in nature, but again internal to the Irish system and not universal or metaconstitutional in nature.
Chapter 3 deals with the very different integration of EU law and the ECHR, with Flynn arguing persuasively that the Convention has become a de facto binding part of the EU legal order, and a floor beneath which EU rights protection must not fall. He charts the conflicts between the two legal orders and their various resolutions in favour of one or the other. While there are some similarities with national interface norms, Flynn concludes that the interaction of these legal orders is almost entirely distinct, as two non-state, transnational orders grapple with each other to reach some functional equilibrium.
Chapter 4 fully explores the frame of the triangular constitution by looking at an issue that intersected all three constitutional orders while being at the centre of Irish constitutional law and politics across 35 years: abortion. The Irish Constitution was amended in 1983 to protect the ‘right to life of the unborn’ and constitutionally prohibited abortion until its removal in 2018. Flynn traces the teasing out of the meaning of this constitutional clause nationally and the ‘polyarchic deliberation’ that followed between each point of the triangle on the issues of provision of information about abortion services in other states; the right to travel to obtain an abortion; and the restriction on private and family life that resulted from Ireland’s strange legal and constitutional abortion regime.
In this complicated space, none of the apex courts of the legal orders asserted bare superiority but exercised authority in certain respects and in certain ways to shape an ultimate compromise. In doing this, Flynn says, each court ‘rendered judgments which were not always coherent with the rest of their jurisprudence, or conflicted with the jurisprudence of their counterparts’ (p. 198).
The Irish example, when explored at this level of particularity, shows the non-universality of interface norms. The context of national order shapes and changes these norms. To put it another way, there is no context-transcendent set of principles that integrate legal orders; these principles are changed by the unique context in which they play out.
Accepting the inevitability of the local
I agree wholly with Flynn’s thesis and would suggest only that it should go further. In the closing chapter, Flynn gives us hope of a return to the universal, albeit in a different form: the interface norms may not be universalisable, but the broader framework is. The idea of the triangular constitution can help us understand constitutional pluralism generally ‘provided we continue to pay close attention to jurisdictional specificity’ (p. 205).
My query would be: having established the importance of the local, why do we need the grand theory to return us to the universal? Such a theory is stuck between a rock and hard place. If, in reality, constitutional pluralism turns fundamentally on local, contingent, variable conditions, the theory without the local is so general that I would suggest it is not useful for guiding or explaining any real exercise in constitutional pluralism. It is simply a rhetoric: a description for a diverse set of phenomena that integrate constitutional orders. Alternatively, if it does have content, and the theory guides application of (or even extinguishes) the local norms of the places where it is applied, the theory has an intellectually imperialising effect that betrays the localist insight the Flynn’s work so aptly demonstrates. 1
Flynn says that his model is ‘fully committed to the normative ideals of European constitutionalism while still paying due respect continuing relevance, authority and importance of national constitutional orders’ (p. 205). He does not consider the possible ideological content and consequences of his triangular constitution as a universal frame, though these, I think, exist. A full account of this ideology will have to await a more leisurely occasion, but in brief, I suggest that Flynn’s theory in his final chapter serves as a justificatory rhetoric for a certain type of European integrationalism that occludes the reality of vertical assertions of power and de facto superiority of transnational institutions. In focusing on the inevitably local flavour of integration, and the element of compromise that will emerge in each jurisdiction, it may ignore the reality of hierarchical power and the extent of its dominance over local norms.
My suggestion is that Flynn’s insight should be directed not at rehabilitating or saving the universal ambitions of metaconstitutionalism or constitutional pluralism but to rebutting them. The book’s greatest contribution, to my mind, is illustrating the inevitability of the local. It shows the need to study in detail the local interaction points between the national and transnational systems, to see the frictions that emerge and how they are resolved in each place. This would be a useful descriptive typology and may provide certain (highly revisable) heuristics and rules of thumb about how to design or act within such systems. But it will not provide us with any universal theories. It seems to me that this work shows us that, if we really seek to understand plural constitutional orders, we should move away from theory into the messy, local world of the pragmatic.