Is the Theory Culpable? A Response to a Statement against Constitutional Pluralism

Last month a group of prominent constitutional law and political studies scholars published or undersigned a joint statement (hereinafter: the statement) in which they call for an unquestionable supremacy of EU law over national law. They oppose the possibility of non-application of CJEU decisions by national courts. As a consequence, the authors also reject the theory of constitutional pluralism (CP), unless it remains confined to cultivation of constitutional dialogue and does not challenge the ultimate constitutional authority of the EU.

The underlying concern behind the statement is that CP in recent years has been verified by the overt conflicts between constitutional authorities in the EU. Although the recent Bundesverfassungsgericht ruling in Weiss has directly sparked the release of the statement, the authors stress its unfortunate connection with autocratic developments in some EU Member States. The statement in its core opposes the normative claims of CP, or the normative claims which the authors assign to this theory.

The blogpost has quickly received a critical response referring mainly to the empirical reality of EU constitutionalism. Thus that response refers to the descriptive aspects of CP. In turn, I will make an attempt to explain that blaming the normative part of CP for the recent constitutional abuses is misguided. I will address three main accusations formulated in the statement. They are as follows: the alleged failure of CP to foresee constitutional conflicts, the inability of CP to offer resolutions to these conflicts, the exposure of CP arguments for abuse by autocrats.

Probably all well-intentioned ideas and theories can be used in a dangerous way. Therefore some of them should be rejected. My claim is that before rejecting CP, the normative precepts of this theory should be taken as an integral whole.

The claims presented in the statement certainly deserve a profound, in-depth academic response. As the authors note, many of these claims resonate with their previous works on the subject. Nevertheless, I hope that this post may offer at least some preliminary reply.

The unavoidability of a conflict

The authors of the statement alert that [most constitutional pluralists] assumed that head-to-head conflicts could be avoided or worked out through dialogue and accommodation. The crisis created by the BVerfG’s Weiss judgment reminds us … that sometimes direct conflicts will occur.

While it is difficult to precisely assess the optimism in the minds of many constitutional pluralists, it is legitimate to say that CP had not prophesised the end of conflicts over the ultimate constitutional authority in the EU. Instead, CP aimed to avoid a devastating clash rather than a conflict itself. This is clear even when one reads the statement. As cited above, the authors admit that if not avoided, constitutional pluralists deem conflicts to be worked out through dialogue and accommodation.

Moreover, the head-to-head conflicts of the recent years have occurred not because the tools of dialogue, tolerance and accommodation had been exhausted or had failed to offer a proper remedy. In fact, in most cases these tools have not been even properly touched upon, at least not on the side of the national authorities. The abuses in Hungary and Poland make it most evident. Moreover, one should note that the reasoning in the Weiss judgment can be criticised from the perspective of normative CP. Constitutional pluralist theory calls for a high standard of mutual treatment. The recent misuses have not represented this standard. Therefore it is not the normative element of CP which is to be blamed. The statement’s authors argue that sometimes direct conflicts … are unavoidable. However, even if this is true, it does not mean that harsh and dramatic conflicts of the kind that we have witnessed in the last years were unavoidable. What is more, it remains unproven that the current state of EU law could guarantee avoidance of conflicts once CP is rejected. To the contrary, the authors stress that conflicts will occur.

After all, the EU constitutional field is human-made, thus unavoidability is relative to the will of the field’s actors. This is a classical argument against the political realist account: if humans make politics and law, no conflict in these areas is unavoidable in the strict sense. We even better realize the significance of the actors’ will in situations when the autocrats’ lack of good faith is evident. One may criticise institutions or ideas for being conflict-generative. Again though, the national authorities criticised in the statement by no means may be considered students of CP.

The possibility of a conflict resolution

In addition to the above, it is difficult to defend the argument that CP claims its ability to resolve all conflicts through judicial dialogue and norms of tolerance and accommodation. On the contrary, CP permits indeterminacy of solutions and plurality of the actors involved. As stated by Neil MacCormick, the pioneer of the theory, sometimes political processes are better suited than law to provide a solution to conflicts between the competing legal orders.

Therefore some ways of conflict resolution that the authors suggest should not be regarded alien to constitutional pluralist orthodoxy. This possibly would apply to states’ involvement in chang[ing] the EU legal norm involved by working through the EU political process or even in compelling their government … to amend their constitution. Indeed, Miguel Poiares Maduro examined similar cases against the background of the previous critique of CP. He defends CP as being an adequate theory even when national authorities are induced to implement constitutional amendment in order to comply with EU law. The statement’s authors would probably agree with such a concrete application of CP so far as it does not reject the supreme authority of the EU. Nonetheless, there is no clear reason to question the possibility of attaining the same result of conflict resolution even when the actors do not accept the existence of an ultimate constitutional authority.

In any case, two claims about CP hold true, in contradiction to what the statement seems to suggest. Firstly, simple and effortless rejection of an EU act or a CJEU decision by a national court is not what the normative part of CP posits. On the contrary, CP demands an effort of creative involvement from both sides. Secondly, one cannot do justice to CP by a critique crafted as if this theory would aim at being a practical instruction of all-solving rules of judicial behaviour. Hence it is misguided to accuse CP of being unable to provide a practical, ultimate answer to conflicts over the ultimate constitutional authority.

The possibility of the identity abuse

As it has become clear in the recent decade and as noticed by the statement’s authors, the argumentative centre of the most severe constitutional conflicts has been the abusive interpretation of the notions of pluralism and constitutional identity by the national authorities. The authors perceive it as yet another defect of CP. As the authors of the aforementioned reaction blogpost aptly respond, in fact each legal notion or norm is prone to abuse. This uncontroversial observation can be supplemented by recalling that national and constitutional identity are enshrined in article 4(2) TEU (as noticed by the statement’s authors).

The identity’s presence in the TEU per se does not enable it to trump EU law obligations or CJEU decisions. But if we are to follow the authors’ reasoning, this fact of the enshrined identity principle entails an even greater risk of argumentative abuse by the national authorities. One may agree that the law as it stands today makes it clear that article 4(2) TEU must not preclude fulfilling the treaty obligations and even then one may fear about the potential abuse of this treaty provision. While it is difficult to imagine the provision immune to freestanding interpretations by autocrats, article 4(2) TEU certainly does not help in case of the abuse intention. This is the law as it stands today, and not only the constitutional theory. And this is the current treaty law, respect to which the authors emphasised several times in their statement. It seems unclear why the susceptibility to abuse of the constitutional identity as a concept of CP theory should be regarded as more dangerous than the susceptibility to abuse of article 4(2) TEU which we ought to respect.

The dangers of blaming a theory

By way of conclusion I want to suggest that there is some risk in blaming the normative CP for the recent constitutional abuses. Ideas and theories may and should be criticised for promising a better future while offering dangerous solutions. But in the case of the current invocations of CP by national authorities, the theory’s normative precepts are being caricatured and distorted. The danger is that the authorities who actually caricature and distort the theory will be hidden from theoretical sight when the culpability for abuses is to be identified. In order to take CP seriously (and I argue it deserves to be taken so), we should take into account its normative claims as a whole. What is inherent in CP is overtly opposed by autocrats. Perhaps a better strategy, rather than rejecting CP, would be to clearly emphasise that abuses we have recently witnessed do not represent the real CP. Such a strategy would be more feasible in the current state of EU law, where we also find no clear guarantee that the rejection of CP would suppress the possibility of abuses.