Another Look at Constitutional Pluralism in the European Union

Published date01 May 2016
Date01 May 2016
Another Look at Constitutional Pluralism in
the European Union
Julio Baquero Cruz*
Abstract: Constitutional pluralismis a theory, or movement, or idea, for someperhaps even
an ideal, about therelationship between the legal systemof the European Union and those of
its Member States. In thispaper, Julio Baquero Cruz analyses its assumptions and implica-
tions in thelight of historical experienceand of the consequences itcould have for the practice
of law in Europe. To do so,constitutional pluralismis compared with the other main positions
about that relationship: the national constitutional position and the position of Union law.
Next to Anarchyis Heterarchy.
Joseph Hall
I Introduction
There are not many critics of constitutional pluralism as a theory, or movement, or idea, for
some perhaps even an ideal, about the relationship between the legal system of the European
Union and those of its Member States. Why would anyone want to criticise such an excellent
theory, which aspires to please everybody and bears such a noble, consensual and politically
correct name? It is not really fashionable or advisable from many points of view to go around
speaking and writing against nice words like pluralism. Nobody wants to be accused of not
being a pluralistand instead to be called things like rigid,hierarchical,monist,orworse.
No wonder that among the persons who care about this debate there are so many
zealous partisans of constitutional pluralism, of various sorts, and so few anti-pluralists.
After my last twocontributions on this subject, publishedin 2011 and 2012,
whether there was still anything left to add. I thought I had said all I had to say about
it. The different issues seemed to have been discussed from all angles, and the various
positions were clear and entrenched.
And yet, some years later, here I am discussing it again. Do I have anything new to say? Is
it worthwhile to repeat the same ideas and add to the ever growing pile of academic writing?
Has the debate changed reality, or reality changed the debate, in any signicant way?
After some new reading, rereading, thinking and rethinking, perhaps the only rela-
tively new thing I may have to offer is a reection on the lasting relevance of the histor-
ical experience which gave shape to the law of integration,
* Member of the Legal Service of the European Commission and visitingprofessor at Sciences Po (Paris) and
Universidad San Pablo (Madr id). The opinions expressed he re are strictly personal and ma y not be
attributed to the Commission or its Legal Service. Thanks are due to Julian Currall and Jonathan Tomkin
for commentsand a thorough revision.
J. Baquero Cruz, An Areaof Darkness: Three Conceptionsof the Relationshipbetween EuropeanUnion Law
and State Constitutional Law, in N. Walker, J. Shaw andS. Tierney (eds.), Europes Constitutional Mosaic
(Hart, 2011), 4971; Legal Pluralism and InstitutionalDisobedience in the European Union, in M. Avbelj
and J. Komárek(eds.), ConstitutionalPluralism in the EuropeanUnion and Beyond (Hart, 2012), 249267.
For this notionand its structural implications, see P. Pescatore, Le droit de lintégration(Sijthoff, 1972).
European LawJournal, Vol. 22, No. 3, May 2016, pp. 356374.
© 2016 John Wiley & SonsLtd. 9600 Garsington Road, Oxford,OX4 2DQ, UK
and 350 Main Street, Malden, MA02148, USA
national constitutional positions and constitutional pluralism in that context, as symp-
toms of the current Zeitgeist.
Apart from that, I want to make two points. Firstly, constitutional pluralism has no
ground of its own because, when pressed in theory or in practice, it dissolves into an
expression of national constitutional thinking or into an ever thinner version of Union
law. Secondly,the approach of Union law to its relationshipwith national law is preferable
to the other approaches.
I use the word preferablebecause evenif one were to accept that there is no normative
or institutional basis for considering that this or that position is rightand this or that
other one wrong, that this one is lawfuland that one unlawful, the fact remains that
we are still bound to discuss the various options in the light of their consequences, as a
matter of practical reason.
One may indeed wonder whether there is not such a basis, but it is mainly from the
perspectiveof the consequences of the variouspositions that I will arguethat the approach
of Union law to its relationship with national law is more productive and more ordered
than those national constitutional approaches which contest (though only at the edges
and mostly in hypothetical cases) the autonomy and primacy of Union law, with
potentially damaging consequences for the integrity of Union law (consequences which
one may like or dislike depending on the value attached to integration and the law of
integration; value which, I will argue, may only be properly assessed from a historical
perspective).And the approach of Union lawis also preferable to constitutional pluralism,
which is either indecisive or, as I have already said, becomes indistinguishable from the
other positionsso much so that one wonders whether the arduous theoretical journey
of the pluralists was worth the effort.
II The Representability of War and the Deep Value of Integration Through
European Law
Those who work with and reect on Union law and national constitutional law in the
present day no longer have a direct experience of the savagery of the two bloody world
wars, with invasions, war crimes, genocide and all, due to endemic conicts between
the most civilised among the European nations, which twice destroyed our continent
in the last century, not so long ago. We have not seen that wasteland, with starvation,
displacement, epidemics, fractured societies, failed economies, failed political
systems, failed legal systems and failed constitutions. We have not seen it but
perhaps we should remember what we have not seen. If we do not, we run the risk
of missing the whole point of the political and legal experiment of European inte-
gration, launched in the aftermath of the Second World War by people who had
lived through it and survivedand wanted, at long last, to create a completely
new alternative to these horrors.
We have the history books. We have the archives. We have the memorials, the
museums, the diaries, the memoirs, the novels, the documentaries, the lms and the grim
TV programmes, late at night, not to be seen by children. How could we forget? Indeed,
we do remember the suffering and the unthinkable atrocities whichnd expression in that
most ominous word:Auschwitz. We have so much information about the last war thatthe
whole of Europe could(justiably?) be plunged into a state of collectivedepression about
its past. We doremember indeed, but at the sametime we seem to have become insensitive
to the lasting force of historical experience, and do not realise that the complex worldwe
live in was builtupon those ruins and mountainsof corpses and because of them.We think
European Law Journal Volume 22
©2016JohnWiley&SonsLtd. 357

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT