Author(s): Matej Avbelj
Source: European Journal of Legal Studies, Volume Issue ()

 

European Journal of Legal Studies

 

“Spaces of Normativity”

 

Volume 2   Number 1   2008

p. 325-370

 

Matej Avbelj and Jan Komárek (eds.)

 

 

Matej Avbelj,* Jan Komárek**

 

I. Introduction: The four visions

 

The present working paper offers a transcript from the symposium “Four Visions of Constitutional Pluralism” held at the European University Institute on 11 January 2008 under the Academy of European Law’s auspices. Four different perspectives on constitutional pluralism were put together and thoroughly discussed by those, who brought them into the scholarly discourse; Julio Baquero Cruz,[1] Mattias Kumm,[2] Miguel Poiares Maduro[3] and Neil Walker.[4] The symposium was organised by Matej Avbelj and Jan Komárek, who also moderated the discussion.

 

Constitutional Pluralism has grown in popularity, especially in the last five years or so. However, it has paid a price for its popularity. The concept has gained so many meanings that often the participants in the debate talk past each other, each endorsing a different understanding of what constitutional pluralism actually means. The core aim of the symposium, therefore, was to clarify the following questions. What is constitutional pluralism? What does it stand for? What is it expected to achieve, contribute to or change in the European integration process? Is it a viable, desirable or perhaps even an indispensable theoretical take on European integration?

 

But let the transcript speak…

 

Matej Avbelj: As we really have a unique opportunity to host four key scholars from the field of EU legal and constitutional theory, it would be imperative not to lose any more time and just open the floor. However, as the debate in the next minutes will doubtlessly be extremely dynamic and as not everyone is equally familiar with all the details and intricacies of the four visions that will be outlined, allow me to sketch some background to today’s debate; by putting the emergence of EU constitutional pluralism in context and by presenting, if only briefly, some of the key theoretical points our speakers hold.

 

To my understanding, and the speakers will have a chance to express their agreement or disagreement with it, the theory of constitutional pluralism has developed against a backdrop of what should be best understood as a classical constitutional narrative about the European integration.[5] This is a theoretical perspective of integration, which has for at least two decades, starting in the early 1980s, dominated both the theory as well as the representation of practices of integration.

 

Following this approach, that all of you are certainly familiar with, the telos of European integration was an ever closer union between the peoples of Europe which required that integration proceeds just one way. Harmonisation, if not even unification, was the main paradigm and all the differences and diversity existing in the integration were perceived as obstacles, originally to free trade and then to the integration as such. They were expected to give way to the supreme Community law requiring uncompromised uniformity of its application across all the member states. The employment of the constitutional narrative was expected to serve exactly this integrationist cause. On the basis of the statist constitutional federal experiences, it was presumed that as constitution confers unity and order in the statist environment the same virtuous affects should occur in the supranational environment as well. The statist origins of classical constitutionalism, if considered and recognised at all, were accordingly not perceived as something contentious or problematic. To the contrary, the formal constitution of integration was explicitly declared to be of a hierarchical nature and literally indistinguishable from that of a federal state. Also in substantive terms, where the economic constitution was to be complemented by a complete political constitution the latter was supposed to mirror, especially in pursuit of appropriate model of democracy and human rights policy, a (federal) state.

 

However, for various reasons, which will be certainly touched upon during the symposium, this classical constitutional vision came under strain and it appeared to be increasingly descriptively, explanatorily as well as normatively inadequate.

 

As Julio Baquero Cruz observed, that which had been appreciated as a ‘true world’ suddenly turned out to be just a fable.

 

Our speakers stepped in at this point. Already in 1998, when classical constitutionalism was still dominating the EU legal mindset, Mattias Kumm outlined a more pluralist approach to the integration with a special focus on the uneasy relationships between the national constitutional courts and the ECJ.[6] A couple of years later he presented a detailed jurisprudential account for the resolution or avoidance of constitutional conflicts in integration.[7] Its purpose was to contribute to the coherence of the European legal order as a whole by finding a best fit balance between the national and EU constitutional concerns all things considered. This is how Mattias’ theory of ‘best-fit universal constitutionalism’, as I prefer to call it, has come to life.

 

He was followed by Miguel Poiares Maduro who has taken up a very similar approach, perhaps transcending a mere-court oriented focus, and developed his own pluralist vision of integration. This could be best captured under the title of ‘harmonious-discursive constitutionalism’. Miguel’s main theoretical concern has, namely, been how to ensure that this admittedly pluralist, heterarchical integration remains in harmony; in a type of contrapunct. The answer is to be found in a discursive practice among all the actors involved whose common basis is to be ensured by a set of contrapunctual principles. The interesting details of how precisely this is supposed to work, will be, I am sure, explained by Miguel.[8]

 

Neil Walker, on the other hand, has gone even a step further. He connected new developments in European integration with a broader picture of an allegedly declining Westphalian paradigm, accompanied with a simultaneous revival of and unprecedented challenges to constitutionalism that was expected to provide answers to an increasingly fragmenting, multi-level and complex world of social affairs. His theory of epistemic meta-constitutionalism is charged with addressing these points. Neil claims that while legal reality of European integration is marked by a plurality of legal orders existing as different epistemic sites, these can be connected through the meta-language supplied by constitutionalism.[9] How exactly is this to happen, we should learn today.

 

Finally, Julio Baquero Cruz has resisted the allure of pluralism and has remained on the skeptical side. In his very recent piece, published as a Robert Schumann working paper,[10] he warned against overly enthusiastic pursuit of pluralist solutions in integration and, in a way very strongly, pointed his critical finger at the ‘pluralist movement’ contending that the latter might well be acting at integration’s disadvantage, rather than vice versa. In his, what I would call, re-vindicated classical constitutional account, he interestingly asks, even if a current reality of European integration is pluralist, why justify it and defend it as such?

 

The transcript follows the structure of the symposium. In its first part, Julio Baquero Cruz, Miguel Poiares Maduro and Neil Walker discussed the questions that we have set in the introduction. As Mattias Kumm was able to join the symposium only in its second part, we started by asking the other three speakers to formulate questions that his work brought up according to them. After that, there was an open discussion with the other participants of the symposium. The questions collected from the audience are only summarised in this transcript due to technical problems with recording; however, we hope that this summary reflects well the dialogic nature of the whole symposium.

 

II. What is constitutional Pluralism?

 

Jan Komárek: There are a lot of labels in the European constitutional discourse. Because we are now talking about constitutional pluralism, the first question would be to the theorists: what do you mean by constitutional pluralism? And this in my view encounters two sub-questions. The first one asks what the constitution is, or perhaps what is behind this talk about constitution. What is a constitutional authority, not in a formal sense, but in some deeper normative sense? The second sub-question wonders what does pluralism mean? Does it really suggest that there are various mutually irreconcilable views of different constitutional perspectives? And is this pluralist view, some would say even radical pluralist view, compatible with the idea of constitutionalism? Can we have constitutional pluralism? This is the first question and I would ask Miguel to address it.

 

Miguel Poiares Maduro: First of all, thanks to Matej and to Jan for organising this and providing us with an opportunity of exercising a kind of psycho-analysis; we are supposed to articulate more clearly and coherently some of the ideas raised in our writings and which we did not fully developed in them. And Matej has made the task more difficult than I had thought at the beginning. When they were organising this I said, jokingly, that they had self-appointed themselves as a kind of apostles of constitutional pluralism and I thought it was actually the role of apostles to furnish deeper explanations while our role should be limited to the labels. Now, it seems they really expect us to dig deeper into the normative foundations of our work on constitutional pluralism what won’t necessarily be an easy task.

 

Be that as it may, you have asked a series of questions, and the first one that you want us to address is what is constitutional pluralism; what we mean by it and how does it relate with what we mean by constitutionalism in general.

 

These questions are of particularly interest to me because they feed into the argument that I have been trying to develop, both in my “contrapunctual law”[11] and “as good as it gets”[12] pieces, according to which constitutional pluralism should not be seen simply as a solution, be it pragmatic or normative, to the problem of conflicting constitutional claims. Rather it should be conceived of as something which is inherent in the theory of constitutionalism itself. In this way I agree with the invitation inherent in your question to focus on constitutionalism in a deep normative sense, especially as I would define constitutionalism as a normative theory of power. As I have argued before, we can identify three dimensions of constitutionalism comprehended in this normative fashion.

 

The first one refers to constitutionalism as a set of legal and political instruments to limit power, in short; constitutionalism as a limit to power. The second one regards the role of constitutionalism in creating a deliberative framework for free, informed and inter-subjective rational deliberation in which different competing visions of the common good can be arbitrated and made compatible with each other in a manner that tries to balance democratic concerns in the control of the political process by a few with concerns of the tyranny of the many. The third is the notion of constitutionalism as a kind of repository of prevailing notions of the common good in a particular political community. But I see these three dimensions as a constitutional instrument for the rationalisation of democracy, in the sense of promoting maximisation on one hand of participation, and this has to do with the intensity and the scope of participation, but also and at the same time of representation. However, under the idea of representation I mean something particular in this context. I hold that constitutionalism is also concerned with the fact that politically legitimate decisions should take into account the differentiated impact that different decisions may have on different groups. In my view the underlying purposes and goals of constitutionalism require taking into account the scope and intensity of participation but also the differentiated impact of different decisions on different people. Now this creates immediately inherent tensions and paradoxes in constitutionalism and that is why, in my view, pluralism is inherent in constitutionalism; you can derive in similar situations equally normatively valid competing constitutional claims. In this way, it is inherent in the nature of constitutionalism that there can be no monopoly of constitutional claims and that often these constitutional claims are expressed by different institutions that compete in giving meaning to the Constitution.

 

Constitutional pluralism in the sense that we have developed in the EU has, however, a broader dimension; it refers to a pluralism of constitutional jurisdictions. Those equally valid normative constitutional claims are now supported or developed by different jurisdictions. That is a new dimension of the constitutional pluralism which, however, is inherent in constitutionalism itself.

 

What are the expressions of this new constitutional pluralism that we have nowadays? For me there are five of them.

 

The first one is a plurality of constitutional sources and we see that in the EU. European constitutional law is drawn from different constitutional sources, not from a single constitutional document, and those sources are national and European. The second one is a pluralism of jurisdictions or of different constitutional sites. This is particularly the case regarding constitutional adjudication, it is linked to the more well known aspect of European constitutional pluralism; the Kompetenz-Kompetenz question, in which Matej and Jan have worked on. The third one is an interpretative pluralism if you want. It is a pluralism which is based not only on different sources but on competing interpretations of the same source by institutions that are not organised in a hierarchical manner. Even in traditional constitutions, in the context of a traditional political community, you cannot say in many instances that there was a clear hierarchy between the political process and courts for example; i.e., a clear monopoly of one of these institutions over the interpretation of the constitution. Traditionally the arbitration between these institutions has been left to courts but that is not a logical necessity and it has varied historically and between political communities. In terms of the normative conception of the constitution you cannot say that courts have or always ought to have a monopoly or final authority of interpretation of the constitution over the political process. And this is linked to this kind of interpretative pluralism. So that leads us to a pluralism of institutions that is something more than simply the pluralism of jurisdictions that has been the dominant concern in the EU context. The fourth expression of pluralism is a pluralism of powers. We increasingly have new forms of public and private power that challenge traditional legal dogmatic categories and raise constitutional questions because they affect the mechanisms of accountability linked to those legal categories. I see this as part of this new constitutional pluralism. And the fifth pluralism is a pluralism of polities. This has two consequences or two dimensions. The first one is that political pluralism in the EU is expressed in a more radical form because different political views of the constitution are supported not simply by different political groups but by different political communities. It is a more radical form of political pluralism than what you normally have at the level of a single political community.

 

Neil Walker: But is that different from pluralism in states?

 

Miguel Poiares Maduro: It is different because what I am talking about is a political pluralism where the different political views are presented as expressing the self-determination of different political communities. The other dimension is mobility between political communities. We do not have only a constitutional pluralism in the EU that is developed on the basis of competing constitutional claims from different jurisdictions or from different political communities. We also have a polity’s constitutional pluralism at the European level because we can also choose between different constitutional modes of organisation by choosing between different political communities. This creates a competition between national constitutional models, if you want.

 

Jan Komárek: Thank you very much for this introduction, setting well the terms of the debate. I would give word to Julio, who is perhaps an opponent of these visions of pluralism and to the suggestions that they could be called ‘constitutional’. Right?

 

Julio Baquero Cruz: Well, I don’t see myself as an opponent of anything. I just defend my own views and what I think would be best for EU law. What is constitutional pluralism is a complex question. I think the important word is not ‘constitutional’, since we know what it means, but ‘pluralism’ - and how pluralism may affect, enrich or undermine the basic content of constitutionalism. I have three ideas. The first is that our constitutionalism is inextricably linked to modernity, and that it has little to do with ancient and medieval constitutionalism. I agree with Miguel Maduro that it includes all the elements he mentioned, like limits to power, deliberation, etc., but there are other elements which are specifically modern. One of them is generality, the idea that a constitutional order covers all aspects of reality. It works against the fragmentation of legal orders which was common currency in European pre-modern history. This was ended by the constitutionalism of modernity, through the centralisation of the administrative state or through the creation of federal structures, in which chaotic fragmentation is replaced by ordered division and coherent interaction. In modern constitutionalism you also have a sense of hierarchy, order and effectiveness.

 

Pluralism adds a post-modern flavour to constitutionalism. By post-modern, I mean all that is fluid and fragmented. And that is what pluralism tries to reflect, the reality of a fragmented law which is always in flux. Perhaps it is more realistic, if the reality of law is more like that, and not at all like the modern constitutional ideal. But there may be a risk in that step. Lawyers have probably been the last to embrace postmodernism. First were the architects, then philosophers, linguists, etc., and a minority of academic lawyers have been the last to embrace it, and perhaps they have done it with a risk to their social role, because they may not be compatible. We renounce to an ideal of constitutional law if we embrace the post-modern view of law which is reflected in radical pluralism, not only in the European Union but also in state constitutional law.

 

I would finally like to draw a distinction between pluralism within a legal order and pluralism between legal orders. It is clear that in a pluralist society, law, politics and institutions have to reflect that plurality. Otherwise, the legal order will create great tensions within the social fabric. But I do not know whether the relationships between legal orders in complex political systems like the EU may be properly and effectively constructed along pluralist lines. It is fine to have pluralism within legal systems, within institutions, of the sort you already have in the EU, if you look at the composition of the Court, the Council, the Parliament and the Commission, but I don’t know whether the interface between legal orders can be pluralistic. The costs in terms of clarity, certainty and effectiveness may be too high.

 

Neil Walker: Thank you. Thanks for organising this. Let me begin by reacting briefly to what Miguel and Julio have said. First, I am interested in Miguel’s reconstruction of his idea of constitutional pluralism. I do not think I have ever heard him saying before that pluralism, as he defines it, is an inherent feature of constitutionalism and that the plurality of constitutional jurisdictions is just one particular manifestation of that inherent reality of constitutional pluralism. I do not disagree with his reasoning in the sense that I think that there are -in the way that he suggests- clearly pluralist aspects within all constitutional orders. However, I would introduce just a definitional caveat to the effect that there is something which is distinctive about pluralism within the European context and the trans-national context more generally; and that distinctiveness does have to do with the pluralism of jurisdictions and everything that implies, which covers not only the pluralism of authority claims but also the pluralism of political communities. I think for analytical purposes it is well worth hanging on to that more particular definition.

 

Secondly, on Julio’s modernity point, I think it is worth pinning down what we mean by modern and post-modern, because otherwise we will be talking past each other. It seems to me that one way of defining the so called modernist project has to do with a deep sense that the world -the social and political world- is something which we can make over to our own design. Is something that we can design, something that we can control, that we can order rationally, that we can bend and reduce to our collective will. And that is why the state is so central to the modernist project; because the state in some ways is a machine - a mechanism which tried to perfect that reduction, with all of its pathologies as well as the virtues of such a an ambition. So the question arises whether it is possible to reconcile constitutional pluralism with modernity. Or is constitutional pluralism already an admission that we have reached a point where there is no possibility and no value in trying to reduce our world to a collective will?

 

And of course such a conclusion might or might not be welcomed. I tend to think, putting my cards on the table, that modernity was and remains a good thing, insofar that we believe the world of public affairs is something that we can at least in some measure reduce to our collective will. It leaves all sort of the difficult questions about what the collective will is, who gets to represent it, etc., but I am basically for the modernist project. But, by the same token, I am not for sticking my head in the sand and somehow concluding through a process of wishful thinking that the world that we should still seek to reduce to our collective will is less complex than it is. And that is for me when the problem and the challenge of constitutional pluralism comes in. Because it is precisely in the European context, but not just in the European context -also in many other post-Westphalian contexts- that you no longer have this mutual exclusivity of peoples, territories and jurisdictions which was emblematic of the original modernist Westphalian constitutional form. Instead overlap becomes endemic. The question is, can you have and acknowledge that overlap and somehow still retain the virtues associated with constitutionalism. I think these constitutional virtues are also modernist virtues. In my recent work, to get at this question I tend to define constitutionalism and its virtues in terms of a number of different frames - a number of different ways in which we engage in and acknowledge a collective framing exercise.

 

There is a frame of the legal order, and a frame of the political or institutional system. There is then a popular frame, the idea of constituent power. And there is also what I call a social frame - the way in which we seek to embed the legal, institutional and popular order within a particular society. Now we all distinguish in rather different ways between a thin and thick constitutionalism. But I would say that most people would agree that what we have had so far at the European level is a thin constitutionalism. And that when some of these same people then ask what all the fuss about the Constitutional Treaty amounts to when we already have a constitution, what they mean is that we have a thin constitution in the sense of the legal order frame and the institutional system frame. But the big question, and the question which was not resolved by the failed Constitutional Treaty, is whether we can or whether we should have a thicker constitution in terms of both the self-authorisation or constituent power frame and the societal embedding frame - the idea of the Constitution as form of social technology which helps embed the society. This social frame, and whether and to what extent it can be constructed through a constitutional process, is a very difficult thing to grasp, but something which we all know is implicitly the case of national constitutional orders. Now, it seems to me what is probably the biggest question of constitutional pluralism is whether these sorts of things -these deep forms of constitutionalism- can exist simultaneously at the national level and at the European level, given the significant overlap between territories, peoples, citizenships, identities, etc.etc. Can these things co-exist, because if they cannot co-exist then it becomes very difficult to understand how that modernist project somehow can be retained and developed and extended in the context of pluralism. So that for me is the pluralist challenge in a nutshell.

 

III. The relevance of the Maastricht decision for the pluralist paradigm

 

Jan Komárek: Thank you. I will move to another question, but it is still connected to what you have just been discussing here, because it puts the idea of constitutional pluralism into a kind of historical perspective; the question of how it has emerged in the European Union. One of the arguments in Julio’s article was that constitutional pluralism emerged only after the German Constitutional Court had delivered its Maastricht decision. That it was an attempt to conceptualise what the constitutional court was trying to put its own right perspective on the European integration. Would you therefore agree that pluralism, as Miguel has just suggested, is a necessary feature of constitutionalism, not even just the European constitutionalism, but constitutionalism as such?

 

Julio Baquero Cruz: It is clear that pluralism did not start with the Maastricth decision of the German Constitutional Court, and that’s not my point. There had been many judgments before, the Solange cases, the Italian cases, and the classical view of Community law was already in question in those judgments; the classical view of Simmenthal, for example, which was put forward by the Court in indirect conversation with the Italian Corte Costituzionale. But the German judgment of 1993 on the Maastricht Treaty was very important. It was paradigmatic, it was a piece of dogmatics with a well developed reasoning linked to a theory of the state. Immediately afterwards the Danish Supreme Court issued another decision on the Maastricht treaty, and the Maastricht-Urteil has been cited and followed in recent times by a number of constitutional courts around Europe. So it was also a catalyst. We all know the influence that German public law has around Europe, especially in some countries like Spain, Italy or Portugal, and in Central and Eastern Europe.

 

I also think the Maastricht-Urteil had a great influence with regard to the pluralist movement; Neil MacCormick, who started it, wrote a piece entitled “Beyond the Sovereign state”[13] and also a shorter piece in the European Law Journal reacting to theMaastricht-Urteil.[14] In the second one, he defended the Maastricht-Urteil and argued that it had much to commend it in terms of legal pluralism. The effort of Mattias Kumm, for example, was also prompted by the German decision. It was at bottom aimed at making sense and managing the legal interaction of the EU and national legal orders after the Maastricht-Urteil.

 

Neil Walker: Yes. I think here we should draw a distinction between plurality and pluralism. Maybe this is too simple, but perhaps one could argue that the Maastricht decision was about the origins of constitutional pluralism, and no longer just constitutional plurality. We already had the existence of overlapping jurisdictions -and so objective plurality- but the way in which they co-existed within a single pluralist unity was not or at least not explicitly, with some exceptions such as the Solange decisions, considered by the ECJ or the national courts. Because pluralism has to be defined subjectively, as an attitude which in some way embraces and recognises objective plurality and works with it, that actually wants to maintain it and not to destroy it. That may seem an odd thing to say given the sense of theMaastricht judgment as in some ways aggressive, as fairly offensive towards the European order. But it was still a form of recognition, however challenging. It was a shot across the bows, a wake-up call that we live not just within a plurality of adjacent orders, but within some sort of idea of constitutional pluralism. Now, the point about that is that Maastricht clearly then was a catalyst, but I think we still have to ask what lay behind it? I recall reading Julio’s article and thinking that while it beautifully describes the catalytic effect of the decision, it does not quite so well capture what lay beneath it, because at the end of the day the Maastricht judgment itself was only a symptom of something deeper.

 

What were the major concerns in the Maastricht judgment? One was, the increasing competence of the EC and the EU, developing a new pillar structure, the monetary union, etc., the growing notion of a generally open-ended process of increasing competences. The second was how there was a disjunction between this increasing competence and the lack of what I described earlier as a thick constitutionalism. So you got increasing competence but without the idea of constituent power and without the idea of societal embeddedness at the European level. And thirdly was the idea of the ensuing danger to some necessary core of the national order. There had to be something which made the national order a national order - something that gave it its identity, its epistemic unity, and that somehow may be under threat by the first two developments. So basically these were perceptions which sprung out of the evolving social and political reality of European integration. Now, they did not have to be articulated as they were in the German constitutional court, but that articulation did not come from nowhere. It was based upon an observation and understanding that we have to recognise the new plural reality, and that we have to give the new pluralism that flows from this a voice, otherwise we might drift into a some kind of constitutional monism at the European level.

 

Miguel Poiares Maduro: Let me first turn very briefly to the question of modernity v. post-modernity. I certainly do not see the project of constitutional pluralism necessarily as a post-modern project. And this certainly does not coincide with my vision of constitutionalism. I think that a real question has been raised by Neil; whether we can still have the values of constitutionalism as project of modernity? Including the generality, comprehensiveness and coherence that you [Julio] stress very much in your article as the values of constitutionalism as a project of modernity. In my view, to have them, in the context of constitutional pluralism, does not require an authoritative definition of those values. That is what I think constitutional pluralism tells us and certainly that is what I’ve tried to argue by developing my meta-principles of constitutional pluralism or the rules of contrapunctual law. These meta-methodological principles aim to secure those values in a context where you do not have an ultimate authoritative source to do that. But certainly, I do not see it necessarily as a post-modern project. To the contrary, since my conception of constitutionalism is deeply embedded by a concern with the rationalisation of the democratic process.

 

On the question that you pose now. First, as I said before, at a deep normative level I conceive of constitutional pluralism as inherent in constitutionalism itself. Second, I think it was already part of European law, in part because already before Maastricht you had national constitutional courts challenging the authority of EC law. You had the Italian constitutional court and the French Conseil d’Etat, and you had the Solange decision of the German Constitutional Court itself. But, moreover, in many other national courts the constitutional narrative explained the application of Community law at the domestic level by reference to certain national constitutional provisions. In this way, the issue of constitutional pluralism was inherent even in the national constitutional orders where a constitutional challenge to EU law was never as fully articulated as in Maastricht. But that is also the paradox of the Maastricht judgment, because at the same time that it challenges European constitutionalism it engages with it in a way that had never been done before. It even provides some suggestions for a future legitimation of European constitutionalism when for example it discusses the conditions under which the EU could develop as a polity. That is the paradox of the Maastricht judgment.

 

Now, the academic discourse is, of course, the other level. I think it is more to this that Julio was referring; that the Maastricht decision was what triggered the attention of academics. This is probably true to a large extent. Nevertheless, it was also, in part, inherent in the academic literature that already presented the development of European law as the product a discourse between the European Court of Justice and national courts. I’m referring to the work of Joseph Weiler, for example, and of some other scholars which already contained some elements of constitutional pluralism. But in a kind of a deeper theoretical manner it was only articulated for the first time in a piece by Neil McCormick and I can accept Julio’s view that Maastricht triggered such academic debate.

 

IV. Constitutional pluralism in practice: Are we all pluralists now?

 

Jan Komárek: Do you think that we are all pluralists now? It seems to me that constitutional pluralism is used as a label in many discourses without even thinking about its consequences. And that is also why we were so much interested in Julio’s paper; he was the one who questioned these perhaps implicit assumptions in pluralism.

 

The question would then be the one which is based on Mattias’ argument in his article. Pluralism can also be misused in other processes. Mattias provided an example of the German government claiming in the Council negotiations that a particular solution can not be adopted because it would be invalidated by the German Constitutional Court. That makes or adds the political argument to he constitutional dimension. And my question is the importance of constitutional pluralism can be different in different contexts. Constitutional pluralism can mean different things in these different contexts. When lawyers or judges are talking about constitutional pluralism it can mean something else and can also have different consequences then if politicians are using this concept in their negotiations. What do you think?

 

Miguel Poiares Maduro: Well, judges never talk about constitutional pluralism and in part that is inherent in the theories of constitutional pluralism itself. The actors that operate in the system are expected to adopt the internal perspective of that system. They have to remain faithful to the narrative that results from that internal perspective even if the narrative can be shaped and adapted to fit an external context of pluralism. Constitutional pluralism is necessarily a kind of external theory. So, what you can expect, and what the courts ought to do, is to shape an internal perspective of the system which is informed by constitutional pluralism. They have to be knowledgeable of its consequences, be aware that they live in the world of constitutional pluralism. Therefore I do not want the courts to be institutionally blind. They should rather reason their decisions institutionally aware of the relationships with other actors and other jurisdictions in the context of constitutional pluralism. But I do not expect a court to come and say, well we know that our authority will be challenged by this other court. That I think you can not expect.

 

Neil Walker: Are we all constitutional pluralists now? I think there is a certain structural inevitability about constitutional pluralism as I define it. But, I think, it is important again to distinguish between levels, and that there is a dimension of constitutional pluralism to fit each of the aspects that I talked about earlier. I think there is a legal system dimension, there is an institutional dimension, there is a constituent power dimension, and there is a societal or political community dimension. One of the reasons why in some respects constitutional pluralism has got a bad name is that people concentrate too much on the legal order dimension. It then becomes reduced to a question of the big constitutional court clash which never happens, or is partially or narrowly avoided. And so all the efforts and all the intellectual energy goes into looking at that particular dimension of it, but partly that is just a kind of professional deformation. You know that lawyers are going to look at these sorts of things. But, then of course you may end up with a debate which seems ‘academic’ in the pejorative sense. Or you end up -and I know that this is something that Julio objects to quite strongly- somehow legitimating what you see as a kind of ersatz legal order. One may be led to say that the law has no option but to recognise a non-legal answer when it reaches beyond and across the authority of particular legal orders, but is it not a contradiction in terms to suggest that the law recognises non-law in certain situation? So in strictly ‘legal order’ terms constitutional pluralism may be seen as a fairly narrow thing and also a negative and destructive thing. If however you see a whole constitutional debate and practice across all these dimensions as an attempt to grapple with a pluralist reality then I think it becomes a far more constructive inquiry. For my part, I see the whole constitutional debate and the whole post-constitutional debate on the Reform Treaty as about dealing with that pluralist constitutional reality - as a sometimes treacherous and paradoxical attempt to ‘find’ the authority necessary to address the clash of authorities. This goes to a much deeper and more expansive level than the visible part of the iceberg above the sea - where you actually see the big constitutional clash in the courtroom. So I think that constitutional pluralism is important, but we have to understand that it exists simultaneously in all these different dimensions.

 

Julio Baquero Cruz: There is an aspect of pluralism which is fashionable. But why? Because it is very well adapted to the present political circumstances. Pluralism is very diplomatic. It is not confrontational. It says “we will sort it out informally, we do not need clashes, we do not need an ultimate authority”. I think the idea of an ultimate authority, by the way, is also an essential part of the constitutionalism of modernity. Without it, it would be very difficult to have unity and coherence.

 

Miguel Poiares Maduro: And that is our key difference. You do not believe that is possible to have unity and coherence without an authoritative decision.

 

Julio Baquero Cruz: An ultimate authority, an institution that may have the last word.

 

Let me say something else. I wonder whether constitutional pluralism is really dominant in the academia. Maybe not. Many Community lawyers do not even know that these issues are being discussed. They do not care. And others do not dare to criticise them. There are two discourses talking past each other. In French journals, for example, you never see articles about this. In German journals, Europarecht, sometimes, but it is not main-stream. In the College of Europe in Bruges, I do not think students are taught about these things. There is a disconnection.

 

Miguel Poiares Maduro: Can I just interject there?

 

Julio Baquero Cruz: Of course.

 

Miguel Poiares Maduro: Because I think what Julio was saying is very true. I wanted to make that point also. It is not only a point of constitutional pluralism. It is more general. There are entire communities of discourse in European law that totally ignore, not only constitutional pluralism, but many other EU law discourses that we may consider as dominant. European law is still constructed in very isolated communities of discourse on law. Perhaps, in part, because of the language factor that helps insulating those discourses.

 

But what I think is more important is the spill-over of academic discourse, in this respect, to the practitioners’ discourse, or to the discourse of other legal actors in the system. Our discourse must adapt itself to the different discourses of different legal communities and their respective legal jargons As an actor of the system I cannot use the same language that I use as an academic in order to be effective. You must adapt to each community of discourse but, while doing it, you can also stretch the boundaries of the language that is normally used by that community. Again, it is the promotion of an internal action informed by the external perception and knowledge of the system.

 

The challenge is to translate your normative concerns and your theories into something that is operational in the language that is used in that system. And that is what I mean by saying that I want judges to be informed by constitutional pluralism. I do not want them to adopt the language that we normally use when we talk about constitutional pluralism as academics.

 

Julio Baquero Cruz: I wanted to say something else about the Convention, which was a pluralist exercise without its members knowing it. There are many things in the Constitutional Treaty and in the Lisbon Treaty which are pluralist in nature. And the pluralist discourse has also appeared in a number of judicial pronouncements here and there. For example, I analysed a judgment of the Conseil d’Etat of 2007 in which I found something very similar to what Mattias Kumm has proposed; that EU law should generally prevail and only in cases involving concrete provisions of the French Constitution which have no parallel in other constitutions or in EU law should a national court consider whether the national constitution may prevail. I do not know whether they have read Kumm. I doubt it. I think they arrived at a similar solution independently.

 

Neil Walker: Miguel made a point earlier I want to return to. Any particular understanding of the pluralist reality is not going to be as neatly detached as the external ‘alien’ understanding he discusses in his work. Indeed, partly what one is doing by labelling the new European juridical space as pluralist is saying that there is an inherent situatedness about legal authority, and about legal knowledge and perception. And within this overall European space people are in very different and distinctive situations. They are nested either in the national orders or within a supranational order. And pluralism, strong pluralism is precisely premised upon the significant extent to which they understand the world from their own perspective. That would not be a surprise. It would not be an undermining of pluralism, but its vindication. Most of the people most of the time experience the law as being settled, and being settled in terms of an authoritative pedigree they recognise. And the complex architecture which is European law, in the larger sense of European law and national law taken together, has many so-called bridging mechanisms for ensuring the settlement, e.g., the preliminary reference procedure, etc. So one can normally ensure the settlement of first order legal questions without having to put the question of who decides who decides -the question of ultimate authority- at issue. But the fact remains that, reflecting the underlying plurality of legal orders, there may be an occasional fracturing of authority - a broken window somewhere. There may be a breeze coming in somewhere.

 

Julio Baquero Cruz: A very cold breeze.

 

Neil Walker: Yes, it is a very cold breeze -it is coming from Scotland- and you know sometimes that cold breeze may be felt in the operation of the law. Somehow, it is affecting, it is structuring it, influencing it.

 

Miguel Poiares Maduro: Sure, it is a breeze. It is renewing the air.

 

Neil Walker: It may indeed be a breath of fresh air. So in that sense, part of what we are doing, and part of the more detailed work of the people around this table has been to ask how you relate the inside to the ‘alien’ outside. How do you move from that everyday, taken-for-granted insider perspective to an awareness of the claims of others? How do you make that outside part of your inside without deferring to, without reinventing some sort of hierarchy, some authority? So, these are important questions, but they are not day-to-day questions. They are not quotidian questions. They are questions of the extreme, or questions of the momentous, as in the context of Constitutional Treaty - where the search for some form of resettlement throws everything is up in the air. To repeat, generally speaking that is not how people normally experience their legal world. But it is a fault-line beneath the ground on which they normally stand.

 

Miguel Poiares Maduro: Can I just say something in this respect, that I think it is important? You are absolutely right, the fact that the courts and other actors decide within the internal logic of their system is the default mode that they have and this is, to a certain extent, a vindication of constitutional pluralism. But it is a vindication of constitutional pluralism as a kind of descriptive theory of that reality. And I think that most of us also defend constitutional pluralism as a normative theory. And in that respect we also claim that those actors similarly have to start informing their action by the notion of constitutional pluralism, by the fact that there are other constitutional sites, that there are other competing claims. And I think this is the real challenge of constitutional pluralism today. In which way should this normative theory develop in terms of a theory of constitutional adjudication for example? Or in terms of a theory of separation of powers? This is the real challenge; in which way can constitutional pluralism reshape traditional dogmatic theories of constitutionalism that, for example, courts use?

 

Jan Komárek: If I may continue on that line, because I think this is quite important, different perspectives of different actors, and you suggested that constitutional pluralism is in a way an external perspective which looks on different actors acting in their own language…

 

Miguel Poiares Maduro: From a descriptive perspective yes, but I think it is also a normative theory that ought to be enforced.

 

Jan Komárek: Yes, and then the point is to what extent you can have this own perspective being informed by pluralism, whether it would not in fact deny it. The example would be the European Arrest Warrant cases.[15] I think that if we apply your view [Maduro’s] then we would, in a way, deny constitutional courts’ independent action within their own logic. I think that you push the way they should be informed by the principles too far. You in fact oppose constitutional courts’ internal logic. According to your view, they would be acting as if they were European courts, not national courts. So in a way it seems to me that it is not pluralism because your principles deny the very idea of these different perspectives.

 

Miguel Poiares Maduro: We have had this discussion several times, Jan. I recognise my pluralism is not a radical pluralism. And that is why I have put forward these meta-principles. My notion of constitutional pluralism aims to prevent the consequences that Julio claims pluralism can lead to. There must be some kind of meta-methodological agreement between the actors of the different systems. With some principles; recognising pluralism by recognising precisely the competing claims of each other and by signalling that they are ready to mutually defer but also to establish the conditions for that mutual deference. The idea is that there is a commitment of all these actors to assure coherence while promoting the values of such pluralism. The idea also requires searching for some kind of systemic compatibility. These are all principles that, I know, limit the degree of pluralism. But I think it is necessary not only to have a viable form of pluralism, that, as I’ve put it, it’s contrapunctual and not a mere cacophony or dissonance.

 

Neil Walker: Yes, it seems that we are always simultaneously concerned about the two opposing cliffs that pluralism can fall off. It can fall off the cliff into a form of monism, right. And so in a sense at least implicitly, this is what you [Jan Komárek] fear of Miguel’s position, that in the name of pluralism it becomes a new monism. That these principles of consistency, coherence, etc., are just euphemisms for new forms of hierarchy. And of course that is a serious concern if you think back to historical debates about federalism. You get precisely that debate within federalist theory, within federalist literature. Does federalism necessarily display a structural bias towards centralism? By its very nature, because it is talking about the relationship between a centre and the regional parts -an ordered relationship- does that mean that the centre always holds, as the default position is in favour of the centre retaining its integrity as a centre? And some people looking at the long history of federalism would say that is also actually what happens. And when the classical notion of divided federalism - of a federalism of separate spheres, gives way to co-operative federalism in the 20th century, what you are actually getting is just a modified version of unitarianism. Now, it may well be that in the EU context, even though we talk about a brave new world of pluralism, that actually what we are doing is just inventing a new vocabulary which in the final analysis will end up pushing us in that federal-but-centralising direction. That is a very, very difficult question to answer.

 

But, of course, on the other side there is Julio’s fear that unless you have something which is a final authority then there is no other way to guarantee law as a settled practice. So these are the twin fears that preoccupy people, and pluralism is trying to say you do not have to give into either fear - that there is something in the middle. There is a via media between these two possibilities. You need not fall off either cliff. But, one can hope that is the case. One can argue how this fine line might be maintained. But one can not guarantee it.

 

V. Constitutional pluralism as a descriptive or a normative theory?

 

Jan Komárek: Let us move now to the next question; is constitutional pluralism something which just describes what the European Union is or is it a normative theory we should believe in, we should have in the European Union?

 

Julio Baquero Cruz: The whole issue is circular. It depends on how you define pluralism. But I also wanted to point to a problem that is normally disregarded, that European law does not work as it should anyway. That it is largely a fiction, in some states a very big fiction, in other states less of it, depending on how their officials, judges and courts abide by or ignore EU law. When I started doing research on this issue and I asked colleagues about their experience, they all gave me many examples of cases in which national courts disregarded European law out of ignorance, out of rebellion, did not refer, etc. This is a major problem. I think the theories of constitutional pluralism have to take this into account, because the judicial system is not really working as it should.

 

Miguel Poiares Maduro [to Julio Baquero Cruz]: That is one of the paradoxes of what you say, also in the article. If you say that this is a reality and that the reality is actually much more dramatic than what constitutional pluralism actually says, then my question to you is: what do you say it should be done? How can we then secure the conditions which you identify with the rule of law and modern constitutionalism […] well […] the main critique your paper makes on constitutional pluralism that I thought could answer such paradox is that by legitimising this reality constitutional pluralism enhances the risk that there will be ever more evasions. But you are telling us that the degree of evasion is actually much bigger than what we are actually saying. So, my question to you is: what would you tell to national courts? How could you be able to create that kind of coherence and uniformity that you aspire to so much?

 

Julio Baquero Cruz: Well, I think both things are theoretically and practically different. The first issue is that of effectiveness. Is EU law applied properly as and when it should? And the second -that of pluralism- is what happens when there is a fundamental clash of values? The first problem should be solved independently of the second one, because it affects the rule of law. Judges should act as they should and national administration should act as they should, because the EU decision-making system is constructed on the assumption that the law is properly applied. And this is not true all the time, in some member states it is not true most of the time.

 

Thence to pluralism. Do we have a pluralistic reality? It depends on the country and on the case. Consider the case of the Belgian Conseil d’arbitrage on the European arrest warrant. It was the only national court that referred a question to the European Court of Justice. The Court gave an answer and the Belgian court followed it. We do not have pluralism there, do we? We have normal Community law, with supremacy, uniformity, and certainty. On the other hand, when the German Constitutional Court, in the same issue, did not follow the suggestion of the German government, which strongly pleaded for it to send a preliminary reference to the European Court, and went on to decide the case on its own, some people in this room would say that it was acting as a pluralist court. It rendered its judgment and it did not really pay much attention to EU law, creating a legal mess, because it saw the case from the exclusive point of view of the German Constitution. Is that pluralism at work, or not?

 

On the normative issue, I would be willing to accept, but only as a second best, a moderate version of pluralism, as long as national constitutional courts and other courts of last resort refer when they have to refer, giving a chance to the European Court of Justice to make its voice heard, and respecting its judgment unless they have extremely powerful reasons not to follow the law, with all the consequences that may entail. This would be a sort of political disobedience. I would not see it as a structural part of the system, as contrapuntal law, etc., tend to be, but as a very exceptional escape from it. I don’t think any of you makes that point about the obligatory nature of preliminary rulings in so many words; you don’t say that the procedure has to be followed. And that is the main problem; that we have a mandatory bridging mechanism, that we have the instruments for a well-ordered dialogue, but they are not used. And they are not used, I believe, not because of fundamental value clashes, but because of considerations related to power, to institutional prestige, etc., that is, for reasons that carry very little weight.

 

Finally, I am also happy with pluralism within the institutions of the Union, and I think there is a great deal of pluralism in them, also at the Court. You have a judge from each member state. When hard cases have to be decided about fundamental rights or values, normally the research division of the Court makes a detailed study concerning the situation in the legal orders of the states. And the Court takes into account that situation to make sure that its intervention will not be disruptive for this or that legal order. That is pluralism within the institution. Do you need more? Can you have more and still have a legal order? I doubt it.

 

Neil Walker: To come back to your Belgian case, I would say all that happened there was that there was no outbreak of pluralist conflict. The Belgian court accepted the view from Europe, OK. But, that does not mean that somehow pluralism vanishes as an explanatory and descriptive template in that particular case. It just means that pluralism is not about conflict, pluralism is about the ontological reality of there being different legal orders having to find terms of accommodation between each other. And often these terms of accommodation operate quite smoothly and quite effectively. So, you know, the fact that sparks did not fly, does not mean that pluralism became inapplicable in that situation. That was perhaps just a normal running of a pluralist order.

 

On the normative point, I would say three things. One is that it seems to me first of all that the way you phrase the question is rather loaded; is it just descriptive? [...] At the end of the day I actually think that there is a normative value in having an accurate understanding of the world. That is in itself a normative value. So, the first normative premise is to say, yes it is a good thing to have a well-informed understanding of the world. There is no point of sticking your head in the sand, and just wishing the world was otherwise, if it has actually developed in a particular way. And insofar as pluralism announces a candid recognition of overlapping authority, that is a first normative value. Of course, it could be an over-recognition, it could be an essentialisation of difference. Miguel in his article talked about the Martians coming down and saying you see people sitting in the national courts or in European courts, believing different things. Well, the Martians have a point. There are actually differently constructed realities there, and we are better able from a modernist perspective to intervene in the world and to change the world if we understand it. So, that is the first normative value.

 

The second normative value, I would say, has to do with recognition. One of the great emblems of the 1990’s is the politics of recognition. In some ways this is an aspect of the politics of recognition. What pluralism is saying at the meta

 





Back to Top