Constitutional Disagreement in Europe and the Search for Pluralism

Abstract

This Chapter has two purposes. One is to suggest that constitutional pluralism is an empty idea. Where there are multiple sources of apparently constitutional law one always takes precedence and the other is then no longer constitutional. Dialogue may help legal the legal sources reconcile, but it does not change the normative hierarchy between them. The second purpose is to make a concrete proposal for embedding pluralist thinking within EU law. The proposal is in the spirit of Poiares Maduro’s suggestion that national courts should take account of EU interests in interpreting national law, and also in the spirit of Kumm’s suggestion that EU law should be self-policing. However, unlike Poiares Maduro it focuses on the need for a more pluralist approach within EU law, rather than national law, and unlike Kumm it focuses on the need to prevent EU law becoming a threat to national constitutions, rather than mechanisms for defusing conflict if things get that far. The two purposes are linked by a common perception: that the investment in constitutional pluralism by scholars has not brought satisfactory returns, yet pluralism is too attractive an idea to be abandoned in haste. The Chapter begins by outlining why constitutional pluralism is attractive to scholars, and why it is unconvincing. It provides a summary of the argument about constitutional pluralism. The Chapter then moves on to develop this in more detail. It first describes the disagreement between some national supreme courts and the Court of Justice about the relative status of national constitutional and EU law. It then considers the likely practical consequences of these disagreements, concluding that the greatest risk is not of a clash of grand constitutional principles, but rather just that EU law may spread to the point that it is seen as no longer constitutionally legitimate. The major need, therefore, in a Europe where