Constitutional Pluralism Revisited

• Published date: 01 May 2016
• Date: 01 May 2016
• DOI: http://doi.org/10.1111/eulj.12177

Constitutional Pluralism Revisited

Neil Walker*

Abstract: This essay revisits the theory of constitutional plura lism. This theory was first

developed in the EU context as a way of understanding and defending the absence of a broadly

agreed source of final authority in the relationship between national and supranational (EU)

legal systems and their respective appellate courts in the context of the significant increase in

supranational jurisdiction around the time of the Maastricht Treaty 25 years ago. The essay

argues that the theory of constitutional pluralism remains relevant today, in particular

offering better explanatory and justificatory accounts of the EU than any of the singularist

(or monist), holist or federalist alternatives. Its continuing relevance, however, depends on

a more explicit focus on the political underpinnings of the legal and judicial dimensions of

constitutional pluralism than has typically been the case in the liter ature, and on more

detailed consideration of the preconditions, forms and limits of constitutional initiative in

the contemporary phase of unprecedented challenge to the legitimacy of the EU.

I The Claim of Constitutional Pluralis m

Like most theories that have enjoyed a modicum of popularity, constitutional pluralism

(hereafter,CP)—particularly as appliedto the EU—has also attracteda deal of scepticism.

Briefly stated, CP in its original European context

1

maintains the following:

1. the overall complex

2

of law pertaining to the EU embraces multiple sites (i.e. the supra-

national site of the EU andthe national sites of each of its 28 member states), each with

its own claim to constitutional authority;

2. there is, in fact, no dominant understanding of this complex that holds across these mul-

tiple sites, according to which the claims to constitutional authority associated with each

* Regius Prof essor of Public Law and the Law of Nature and Nations at the University of Edinburgh.

1

For discussion of constitutional pluralism beyondthe European context, see e.g. M. Avbeljand J. Komarek

(eds.),ConstitutionalPluralism in theEuropean Union andBeyond (Hart, 2012);N. Krisch, BeyondConstitution-

alism: The PluralistStructure of Postnational Law (Oxford University Pre ss, 2010); N. Walker, Intimations of

Global Law (Cambridge UniversityPress, 2015), chapter 3.

2

I use the term ‘complex’advisedly, as a neutral, pre-theoretical descriptionof something that is made up of

different elementslinked in a close or complicatedway. Other more familiar terms toaccount for the holistic

quality of law, such as ‘system’or‘order’, are avoided at this initial stageas they already carry with them, at

least in some usages,particular understandings of the nature of the connections between theparts of the com-

plexthat it is precisely the pointof constitutionalpluralism to elucidateand evaluate. As willbecome clear in the

text, in developingthe theory of constitutional pluralism I favour system to describe the institutionally‘thick’

and normativelycomprehensive and self-referentialframeworks of national and supranationallaw, and treat

order as extending to any coherent normative formation, including the looser forms of coherencethat might

emerge from a repetitive pattern ofinteraction between differentlegal systems. In this I followK. Culver and

M. Guidice, ‘Not a system but an Order:An Inter-institutional Viewof European Union Law’,inJ.Dickson

and P. Elefthereadis (eds.), Ph ilosophical Foundations of European Union Law (Oxford Universi ty Press,

2012), 54–76.

European LawJournal, Vol. 22, No. 3, May2016, pp. 333–355.

© 2016 John Wiley& Sons Ltd. 9600 Garsington Road,Oxford, OX4 2DQ, UK

and 350 Main Street,Malden, MA 02148, USA

site would be ordered within a hierarchyor otherwise reconciled andresolved by reference

to a single meta-authoritative standard; rather, each site is associated with a plausible

claim to ultimate constitutional authority that stands independently of the other claims

3. In order to sustain the overall complex in a constitutionally optimal f ashion, each site

ought to acknowledge and somehowaccommodate the claims of theothers as independent

sites of constitutiona l authority—thereby ensu ring the continuing absen ce of a single

dominant authoritative framework

Stated in these three propositions, CP differs from and has been challenged by what may

be termed particularist, holist and federalist conceptions of EU law. Subscribers to those

other conceptions claim that CP is unsatisfactory in one or more of a number of respects.

In terms of the first and second propositions set out above, CP may offer a false or

inadequate account of the constitutional framework of the EU. Or, contrary to the claim

in the third proposition set out above, it may have normatively undesirable implications.

More generally, CP may be regarded as indistinct or as only trivially distinct from one of

the other conceptions, or as offering an inferior version of another conception, and so as

supplying a redundant perspective, or worse, a perspective that distorts or distracts from a

similar but superior perspective.

The value of CP, then, depends, in the first instance, on how well it can answer these

objections.Is CP’s depiction of the EU constitutional arena compelling,or at least tenable

(the descriptive/expla natory claim)? To the exten t that it is tenable, does it paint an

attractive picture of a European future, or at least one that is less unattractive than other

perspectives, bearing in mind that what counts as attrac tive in this context is b oth

contestable and complex (the normative claim)? And, if it does pass these two tests, does

it actually constitute an original position, or does it merely borrow the clothes of other

positions better suited to its purposes (the distinctiveness claim)?

But even if these objections can be overcome and the alternative claims of the rival

theories of the legal character of European integration rebutted, this would not amount to

a full vindication of the explanatory appropriateness or normative value of CP. The

shortcomings of rival theories are not reason enough to endorse CP. I do nevertheless want

to insist upon this first step, and so begin by making the argument that CP does not fail on

account of any superiority demonstrated or critique offered by these rivals. CP’sbroader

challenge, however, and also its broader prospects, derives from a more general difficulty

associated with the legal and political conceptualisation of the European Union. In a nut-

shell, for reasons below, it is difficult—and as the European supranational experiment enters

a turbulent seventh decade it becomes ever more difficult—to imagine the EU as a legitimate

legal and political construction other than by invoking the structures and values of constitu-

tionalism; that, indeed, is why I use the language of ‘constitutionally optimal’to describe the

normative ambition of CP. Yet those constitutional structures and values fit awkwardly with

the EU’s unprecedented non-state form. The idea of CP captures this sense of awkward

indispensability—of an approach that seems as unfamiliar, even incongruous, as it does

unavoidable. As such, or so I shall claim, CP supplies a key if testing point of departure

for thinking through the best terms and future promise of the European constellation.

II Locating Constitutional Pluralism

Before developing these lines of argument, however, let me make three additional preliminary

remarks with a view to locating CP more precisely within the diverse and expansive

landscape of EU theory and praxis.

Constitutional Pluralism RevisitedMay 2016

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