Constitutional Pluralism Revisited

Published date01 May 2016
Date01 May 2016
Constitutional Pluralism Revisited
Neil Walker*
Abstract: This essay revisits the theory of constitutional plura lism. This theory was rst
developed in the EU context as a way of understanding and defending the absence of a broadly
agreed source of nal authority in the relationship between national and supranational (EU)
legal systems and their respective appellate courts in the context of the signicant 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 justicatory 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 EUhas also attracteda deal of scepticism.
Briey stated, CP in its original European context
maintains the following:
1. the overall complex
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.
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.
I use the term complexadvisedly, 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 systemororder, 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 institutionallythick
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), 5476.
European LawJournal, Vol. 22, No. 3, May2016, pp. 333355.
© 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 authoritythereby 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 rst 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 rst instance, on how well it can answer these
objections.Is CPs 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 rst 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. CPsbroader
challenge, however, and also its broader prospects, derives from a more general difculty
associated with the legal and political conceptualisation of the European Union. In a nut-
shell, for reasons below, it is difcultand as the European supranational experiment enters
a turbulent seventh decade it becomes ever more difcultto 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 optimalto describe the
normative ambition of CP. Yet those constitutional structures and values t awkwardly with
the EUs unprecedented non-state form. The idea of CP captures this sense of awkward
indispensabilityof 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
© 2016 John Wiley& Sons Ltd.334

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