Discretion, not rules: postunitary constitutional pluralism in the Economic and Monetary Union

Abstract

Constitutional pluralism arises in situations where different legal orders claim the ultimate say. Some argue that where different legal orders claim supremacy, logic requires one of them to prevail and the others to succumb. This chapter argues that this is a fallacy. In the current postmodern constellation, constitutional pluralism is a paradox that defies simple hierarchical solutions. One can only hope to operationalize that paradox in ways that stabilize the relationship between the domestic and European legal orders. Reconstructing the vertical and horizontal relationships between different legal orders or spheres of competence in the European legal space, the chapter argues that the actors involved frequently seek to stabilize them by what one might call “mutually assured discretion”. This designates a relationship between two legal orders (or two actors) organized by interdependent legal concepts by which these legal orders (or spheres of competence) mutually define that relationship. Those interdependent legal concepts are often deliberatively vague and grant actors in both legal orders (or spheres of competence) a fair amount of discretion. This entices self-discipline within actors in both legal orders (or spheres of competence). Key to the success of mutually assured discretion is the openness of the interdependent legal concept to rational discourse within both legal orders (or spheres of competence). An example is the proportionality principle. I elaborate the operation of mutually assured discretion in the European legal space through the study of a set of judgments of European and domestic courts, especially the German Federal Constitutional Court (FCC). The analysis will put particular emphasis on the Economic and Monetary Union.