The anatomy of constitutional pluralism in the European Union

Abstract

This paper looks at constitutional pluralism as a model for understanding interactions between state law and the law of the European Union highlighting a particular puzzle in this account: the lack of crisis in their interactions. Crisis - defined as the simultaneous or alternative application of legal systems by the same court – would be expected from interactions between distinct legal orders, each making mutually exclusive claims to ultimate authority over the same subject matter such as is the case with EU law and state law. It explores and critiques a series of potential answers to this puzzle in constitutional pluralist literature – radical pluralist, reinvigorated monism and principled accounts – arguing that they rely either on an improbable coincidence or require giving up on the claims to ultimate authority made by state and/or EU courts. This latter feature is particularly problematic given the centrality of the EU Court’s claims to ultimate authority to understanding EU law as a constitutional legal system distinct from conventional public international law or other normative orders; a claim which constitutional pluralists deem axiomatic. The paper therefore provides an alternative solution to the puzzle relying on Raz’s conception of legal systems. It argues that incidences of the application of external norms and claims to ultimate authority serve different functions within a legal system. Norm-application relates to the validity and effectiveness of the system to which the norms belong, whereas claims to ultimate authority serve to individuate distinct legal orders. In the EU context then, rather than setting up conflicts, claims to ultimate authority merely serve to highlight the fact that EU law constitutes a legal system and that when its norms are applied in state legal orders that it is not part of those state orders but a distinct order of law.