Abstract
Abstract Constitutional pluralism has long been controversial, but has recently come under renewed attack. Critics allege that by justifying departure by national courts from the Court of Justice of the European Union’s (CJEU) orthodoxy on the primacy of EU law, constitutional pluralism is (at best) susceptible to abuse by autocratic member state governments, or is (at worst) a favored tool of Europe’s new authoritarians. This article is a defense of heterodoxy in European constitutional thought, and of constitutional pluralism in particular. It uses the concept of “loyal opposition” as a framing discourse, allowing us to see that heterodox approaches to EU constitutionalism and opposition to the received and dominant interpretation of the primacy of EU law are not necessarily any less “loyal” to the principles and values of European integration than agreement with the CJEU. A “legitimacy test” is proposed, by which we can determine whether a given instance of national judicial disagreement with the CJEU is loyal, principled opposition, or disloyal, abusive opposition.
Highlights
Constitutional pluralism (CP) is the umbrella term for a range of theories which all share a core descriptive and normative thesis: that the legal systems of the European Union and of its member states are best regarded as being arranged in a conceptual heterarchy, where no one system is normatively superior to the other, rather than in a hierarchy, where one system—European or national, depending on one’s preferences—must be supreme.This has always been controversial, but recent developments have sharpened the tone of the debate
It uses the concept of “loyal opposition” as a framing discourse, allowing us to see that heterodox approaches to EU constitutionalism and opposition to the received and dominant interpretation of the primacy of EU law are not necessarily any less “loyal” to the principles and values of European integration than agreement with the Court of Justice of the European Union (CJEU)
The Parliament has always been dominated by a grand coalition of center-right and center-left, whereby opposition is left mainly to those who oppose European integration tout court; and we are left with two ideologically incoherent forces ranged against each other: the “pro-Europeans” and the “Eurosceptics.” In this reductive partisan binary, a broad coalition of social democrats, liberals, and conservatives are arrayed against a unwieldy coalition of those further right and further left
Summary
Constitutional pluralism (CP) is the umbrella term for a range of theories which all share a core descriptive and normative thesis: that the legal systems of the European Union and of its member states are best regarded as being arranged in a conceptual heterarchy, where no one system is normatively superior to the other, rather than in a hierarchy, where one system—European or national, depending on one’s preferences—must be supreme. This has always been controversial, but recent developments have sharpened the tone of the debate.
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