Another Look at Constitutional Pluralism in the European Union

• Published date: 01 May 2016
• DOI: http://doi.org/10.1111/eulj.12178
• Date: 01 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 pluralist’and 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,

1

Iwondered

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 significant way?

After some new reading, rereading, thinking and rethinking, perhaps the only rela-

tively new thing I may have to offer is a reflection on the lasting relevance of the histor-

ical experience which gave shape to the law of integration,

2

andtotrytoputthe

* 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.

1

J. Baquero Cruz, ‘An Areaof Darkness: Three Conceptionsof the Relationshipbetween EuropeanUnion Law

and State Constitutional Law’, in N. Walker, J. Shaw andS. Tierney (eds.), Europe’s Constitutional Mosaic

(Hart, 2011), 49–71; ‘Legal Pluralism and InstitutionalDisobedience in the European Union’, in M. Avbelj

and J. Komárek(eds.), ConstitutionalPluralism in the EuropeanUnion and Beyond (Hart, 2012), 249–267.

2

For this notionand its structural implications, see P. Pescatore, Le droit de l’intégration(Sijthoff, 1972).

European LawJournal, Vol. 22, No. 3, May 2016, pp. 356–374.

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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 ‘preferable’because evenif one were to accept that there is no normative

or institutional basis for considering that this or that position is ‘right’and this or that

other one ‘wrong’, that this one is ‘lawful’and 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 positions—so 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 reflect 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 conflicts 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 survived—and 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 films 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 whichfind expression in that

most ominous word:Auschwitz. We have so much information about the last war thatthe

whole of Europe could(justifiably?) 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

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