The Triangular Constitution: Constitutional Pluralism in Ireland, the EU and the ECHR by Tom Flynn

• Date: 01 January 2020
• Author: Ciarán Donohue

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e Triangular Constitution: Constitutional

Pluralism in Ireland, the EU and the ECHR

CIARÁN DONOHUE*

e Triangular Constitution: Constitutional Pluralism in Ireland, the EU and the

ECHR by Tom Flynn (Hart Publishing 2019)

In a fascinating new monograph,1 Tom Flynn posits his theory of ‘triangular

constitutionalism’, a new way of thinking about the relationship between the Irish,

EU and ECHR legal orders.

Flynn’s theory is grounded on a critique of ‘constitutional pluralism’, the notion that

interacting legal systems should not be regarded as being hierarchically arranged,

with one ‘on top of the others’, but rather pluralistic and heterarchical, with legal

actors in dierent orders making competing claims to supremacy. is book argues

that Ireland’s tripartite constitutional relationship with the EU and ECHR legal

orders is neither hierarchical nor heterarchical, neither horizonal nor vertical, but

triangular, with each of the three orders forming the vertices of a triangle, and the

relationships between them the triangle’s sides.

Scholars have long grappled with questions such as: what is the relationship

between the EU legal order and those of its Member States? Who has the ultimate

say in cases of constitutional conict? And, how can we accurately characterise the

interaction between these competing and overlapping legal orders? Since the 1990s,

the eld has yielded a wealth of meandering theoretical discussion falling under the

broad umbrella of constitutional pluralism.2 As Flynn recognises, constitutional

pluralism has been criticised as ‘too messy and therefore too vacuous …’,3 and ‘a

remarkably underspecied concept which allows a multiplicity of meanings’.4 Not

long ago a scholar wondered whether there was ‘anything le to say’ on the topic.5

* Ciarán Donohue is a solicitor.

1 Tom Flynn, e Triangular Constitution: Constitutional Pluralism in Ireland, the EU and the ECHR

(Hart Publishing 2019).

2 See for example, Neil MacCormick, ‘Beyond the Sovereign State’ (1993) 56 Modern Law Review

1; Julio Baquero Cruz, ‘e Legacy of the Maastricht-Urteil and the Pluralist Movement’ (2008) 14

European Law Journal 389; Neil Walker, ‘Constitutional Pluralism Revisited’ (2016) 22 European

Law Journal 333.

3 Flynn (n 1) 11, quoting Klemen Jaklič, Constitutional Pluralism in the EU (Oxford University Press

2014) 191.

4 Flynn (n 1) 11, quoting JHH Weiler, ‘Prologue: Global and pluralist constitutionalism – some

doubts’ in Gráinne De Búrca and JHH Weiler (eds), e Worlds of European Constitutionalism

(Cambridge University Press 2012) 9.

5 Julio Baquero Cruz, ‘Another Look at Constitutional Pluralism in the European Union’ 22(3)

European Law Journal 356.