Varieties of Constitutionalism in the European Union

Abstract

AbstractThe underlying assumption of constitutional pluralism, one of the dominant theories of EU legal scholarship, is a fundamental constitutional homogeneity amongst the EU Member States allowing for harmonious co‐existence and ‘constitutional tolerance’. This article challenges this assumption by demonstrating that the EU is characterised by a fundamental constitutional heterogeneity. It argues that the Member States are influenced by at least three different ‘varieties of constitutionalism’: ‘post‐fascist constitutionalism’, ‘evolutionary constitutionalism’ and ‘post‐communist constitutionalism’. The article shows that the type of constitutionalism dominant in a Member State influences its conception of the nature of the EU and its legal and political relationship to the project of European integration. The EU is therefore characterised by a fundamental constitutional asymmetry. The rise of authoritarianism in Poland and Hungary, while extreme, should thus not be treated as an exception to an otherwise constitutionally homogenous Union.