Questioning Constitutional Pluralism

Abstract

The contemporary legal landscape is one of a plurality of normative orders which exist alongside the conventional legal systems of states and public international law. That these systems interact and frequently conflict both with state law and international law and with each other is an increasingly common fact of modern legal practice. The concept of constitutionalism is frequently employed as a way of understanding these post-state regimes as well as a method of managing the inevitable conflicts between legal orders in a pluralist legal universe. In Europe, in particular, constitutionalism has featured prominently in legal pluralist discourse in two important respects. Firstly, it has been employed as a way of theorizing non-state legal systems such as that of the European Union and the European Convention of Human Rights. Secondly, constitutionalism has been proposed as a frame within which to understand and manage legal pluralism in Europe and in particular as a framework for the resolution of conflicts between such orders. The received wisdom in this literature is that pluralism and conflicts between EU and national law are amenable to resolution according to a robustly constitutionalist framework whereas ECHR conflicts with national law are of a more radical pluralist form, and therefore less ‘constitutional’. This paper challenges this orthodox position. It traces the genealogy of pluralism in the EU and ECHR orders, concluding that a pluralist conception of EU law cannot be constitutional due to the fact that conflicts between the EU and national law are contests of sovereignty, whose resolution in a constitutional frame is question-begging. The interaction between the ECHR and national legal systems, on the other hand, the paper argues, are precisely the sort of conflict where the concept of constitutionalism can do real work at the post-state level. In presenting this taxonomy as a better way of understanding normative pluralism in Europe, it concludes by introducing an argument against pluralism in the relationship between EU law and national law, arguing that the attitude of national courts such as the German Constitutional Court should be viewed as a form of institutional civil disobedience which is a normal aspect of any constitutional order, rather than requiring the positing of an overarching constitutional frame binding EU and national courts.

Keywords: Constitutionalism, pluralism, metaconstitutionalism, Grundnorm