Rethinking Constitutional Authority: On the Structure and Limits of Constitutional Pluralism
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Description
It is widely recognized that European constitutional practice has a pluralist structure. The legal orders of Member States are not hierarchically integrated into the European legal orders. Instead, from the point of view of Member States’ highest courts, the status of European Union law is a matter to be determined with reference to national constitutional norms. The relationship between the European legal order and the legal orders of Member States has been the focus of much writing on pluralism in he European Union. What the recent Kadi decision has clarified is that—according to the European Court of Justice (ECJ) and in contrast with the position of the European Court of First Instance (ECFI)—the relationship between the European legal order and UN law should also be conceived in pluralist terms. The ECJ has insisted that the EU legal order is not hierarchically integrated into an international legal order, in which UN law supersedes all other Treaty law as established by Article 103 UN Charter. Instead, EU law determines on its own terms the conditions under which UN resolutions may be enforced by European law. The legal orders established by Member States, the European legal order and the international legal order are thus, from the perspective of the highest courts of the respective legal orders, to be conceived as distinct and separate legal orders that are not hierarchically integrated in the more encompassing legal order. The Kadi decision is an invitation to deepen questions relating to legal pluralism, by focusing not just on familiar terrain of the relationship between EU law and the law of Member States, but also the relationship between EU law and UN law. Generally, there are two jurisprudential questions that a pluralist legal structure raises. The first concerns the management of the interface between pluralist (non-hierarchically integrated, heterarchical) legal orders and has been the focus of a great deal of scholarly attention in the context of the relationship between EU law and national law. If different legal orders find themselves in a non-hierarchical relationship to one another, how should they manage their relationship to one another? In recent years commentators have pointed out that, notwithstanding the pluralist nature of legal practice, the relevant actors—and courts in particular—have established mechanisms and designed doctrines that allow for constructive mutual engagement between different legal orders. Joseph Weiler, for example, has pointed to the constitutionally tolerant nature of Member States’ engagement with European law and has identified in that tolerance the normative core of the European integration project. On a doctrinal level Miguel Maduro has described the ‘contrapuntal’ nature of the interaction between the ECJ and Member States’ courts. And this author has argued that the doctrines typically used by national courts can be reconstructed as the result of applying constitutional principles that are shared across legal orders in Europe to questions of conflicts between different legal norms. Legal pluralism in Europe is thus guided, constrained and structured in a way that might justify describing that practice in constitutional terms, even in the absence of hierarchical ordering conventionally associated with constitutionalism.5 These authors—and others—have provided an account of the relationship between different legal orders that clarify how legal coherence is possible even absent hierarchical integration. The idea of constitutional pluralism carves out a third way of conceiving of the legal world between hierarchical integration within one legal order on the one hand and a deep pluralism on the other, where actors of each legal order proceed without systemic regard for the coherence of the whole. Authors addressing the Kadi decision from this angle, as Grainne de Búrca and Daniel Halberstam together with Eric Stein to some extent do, analyse whether the ECJ or at least the Advocate General’s opinion has appropriately engaged and taken into account the prerogatives of the international order when articulating its position and what exactly that might mean in practical terms under the circumstances. The following will leave these questions aside.
Source Publication
Constitutional Pluralism in the European Union and Beyond
Source Editors/Authors
Matej Avbelj, Jan Komárek
Publication Date
2012
Recommended Citation
Kumm, Mattias, "Rethinking Constitutional Authority: On the Structure and Limits of Constitutional Pluralism" (2012). Faculty Chapters. 1062.
https://gretchen.law.nyu.edu/fac-chapt/1062
