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Three Claims of Constitutional Pluralism
Miguel Poiares Maduro^1
focused
The constitution of Europe has developed without a constitutional theory.^3 Following,the work of Joseph Weiler, there has been increased discussion, on two old questions: Does Europe have a constitution? Does Europe need a constitution? Rarely do we see any work on the constitutional consequences of different constitutional conceptions of the European Union: what theories of fundamental rights, separation of powers or judicial review ought to dominate EU constitutional law? If European constitutionalism changes constitutionalism itself how does that impact on those aspects of a theory of constitutional law?
Constitutional pluralism^5 has been, perhaps, the most successful attempt at theorizing the nature of European constitutionalism. However, it has not yet provided a constitutional theory of EU law. Some understand it, in fact, simply as theory regulating conflicts of constitutional authority. In other words, constitutional pluralism would not define the identity of European
(^1) I would like to thank the participants at a Oxford workshop on constitutional pluralism organized by Jan Komarek and Matej Avbelj. Thanks are also due to Giuseppe Martinico, Bruce Ackerman and Owen Fissfor comments and suggestions and Boris Rigod for his research assistance. (^3) M Poiares Maduro, ‘Europe and the Constitution: What If This Is As Good As It Gets?’ in M Wind and J Weiler (eds) European Constitutionalism Beyond the State (Cambridge, Cambridge University Press, 2003) pp. 74, 76 and Constitution (Oxford, Hart Publishing, 1998) 7 idem. , We the Court: The European Court of Justice and the European Economic et Seq. (^5) Including, in here, its German variant of multi-level constitutionalism. See I Pernice, ‘Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-Making Revisited’ (1999) 36 Common Market Law Review 703-750; idem. , ‘Multilevel Constitutionalism in the European Union’ (2002) European Law Review 511–529; idem. , ‘The Treaty of Lisbon. Multilevel Constitutionalism at Work’ (2009) 15European Polity’ in P Dobner and M Loughlin (eds.) Columbia Journal of European Law 349-407; F Scharpf, ‘Legitimacy in the Multi-level The Twilight of Constitutionalism? (Oxford, Oxford University Press, 2010) 89-119; N Walker, ‘Multilevel Constitutionalism: Looking Beyond the GermanDebate’ in K Tuori and S Sankari (eds.), The many Constitutions of Europe (Farnham, Ashgate, 2010) 143-
constitutionalism itself but the nature of its relationship with other constitutional orders (national and, possibly, international). In this piece, I want to discuss the real potential of constitutional pluralism as a constitutional theory. I conceive constitutional pluralism not only as remedy for constitutional conflicts of authority but as the theory that can best embrace and regulate the nature of the European Union polity.
I will put forward three different claims that can be made by constitutional pluralism. I will start by highlighting how those claims entail a more ambitious conception of constitutional pluralism when compared with the more modest claim usually attributed to constitutional pluralism. As a consequence, I will discuss the relationship between constitutional pluralism and EU constitutional law and constitutionalism in general. The broadest claim will present constitutional pluralism as the basis for an upgrading of the theory of constitutionalism in general but will also highlight the challenges still to be faced by constitutional pluralism to perform that role.
The Claims of Constitutional Pluralism
It has been stated that constitutional pluralism has emerged as a response to the Maastricht Judgment of the German Constitutional Court.^6 This judgment brought to the fore the risks of constitutional conflicts between EU law and national constitutions emerging from the claims of final authority embodied in the case law of the European Court of Justice and national constitutional courts. Constitutional pluralism is often presented as a
(^6) J Baquero Cruz, ‘The Legacy of the Maastricht-Urteil and the Pluralist Movement’ (2008) European Law Journal Pluralism’ and A Somek, ‘Monism: A Tale of the Undead’ chapter XXX in this volume. 389-422, at 412 et Seq. , Mayer and Wendel, ‘Multilevel Constitutionalism and Constitutional
constitutional pluralism is both better understood and more useful if not limited to that. Furthermore any debate on how to solve or regulate constitutional conflicts of authority inherently involves a debate on the nature and legitimacy of the competing constitutional claims of final authority. As such, it always requires a broader understanding of the nature of the European and national constitutions and their relationship with constitutionalism in general.
It is with this in mind that I will present three different claims of constitutional pluralism in order to clarify what constitutional pluralism is and the extent to which it can help us develop a constitutional theory of EU law and of constitutionalism in general.
The Empirical Claim
The starting point of constitutional pluralism is empirical. Constitutional pluralism identifies the phenomenon of a plurality of constitutional sources and claims of final authority which create a context for potential constitutional conflicts that are not hierarchically regulated. More broadly, it refers to the expansion of relevant legal sources, the multiplication of competing legal sites and jurisdictional orders, and the existence of competing claims of final authority. In EU law, where the current movement started, constitutional pluralism also mapped what is usually described as a discursive practice between the European Court of Justice and national constitutional courts, aimed at reducing the risks of constitutional conflicts and accommodating their respective claims of final authority.
If I had to summarize the core empirical claim of constitutional pluralism, it would be the following: constitutional pluralism is what best describes the current legal reality of competing constitutional claims of final authority among different legal orders (belonging to the same legal system) and the judicial attempts at accommodating them. This leaves open the question of whether it is more appropriate to conceive of constitutional pluralism in the EU as a pluralism of legal orders (EU and national) or as a pluralism of constitutional claims of authority within the same legal order (with national legal orders being part of the broader European legal order in its respective field of application). In my previous work I have conceived of a European legal order composed of national and EU legal orders. However, the best way to present the current legal reality in the practice of courts may be by making use of Tuori’s distinction between legal order and legal system.^10 While the legal order refers to law as a symbolic-normative phenomenon, the legal system refers to the legal practices where the legal order is produced and reproduced (lawmaking, adjudication and legal scholarship).^11 Making use of this distinction, we can conceive of the EU and national legal orders as autonomous but part of the same European legal system. For those practising law in Europe, this European legal system implies a commitment to both legal orders and imposes an obligation to accommodate and integrate their respective claims. The importance of this resides, among other things, on the hermeneutic requirements imposed on national and European courts when acting within the EU legal system.^12
(^10). See K Tuori, ‘The Many Constitutions of Europe’, in K Tuori and S Sankari (eds.), The many Constitutions of Europe 11 (Farnham, Ashgate, 2010) 3-30... 12 K Tuori, Towards a Theory of Transnational Law, manuscript, not yet published.In this respect, see the principles of contrapunctual law that I develop in Contrapunctual Law – Europe’s Constitutional Pluralism in Action…
Instead, he argues that EU law itself does not prevent national judges from adopting decisions disrespecting EU law (what he calls “false decisions”) since ultimately their decisions will not be void and the only consequence may be tort liability. In his own words: “it makes sense to say that Member States retain the power to have their judges adopt false decisions, at any rate, as long as States are willing to pay for it.^17 To this, he adds the lack of effective EU powers to protect EU law against recalcitrant Member States.^18 The conclusion is that “the overarching legal system vests the power to adjudicate supremacy conflicts in the national system”.^19
What constitutional pluralism presents as conflicting claims of final authority is reconstructed by Somek as an actual recognition of the supremacy of national constitutionalism. I disagree. First, the existence of false decisions is, as Somek himself recognizes, a usual feature of any legal system.^20 it is quite common for courts to wrongly interpret and apply the law. Under EU law, as under national law, those “false decisions” are not void, because the national courts that take them have been empowered to interpret and apply EU rules by EU law itself. It is because national courts are part of the judicial system set forth by EU law that their decisions (even when “false” in the sense mentioned by Somek) are valid and become final when all appeals have been exhausted. This is, therefore, a consequence of EU law and not national law. Second, the argument that the existence of liability for judicial acts violating EU law amounts to permit States to violate EU law so long as they are willing to pay for it is equally unconvincing. A similar argument can be made in respect of national law itself. Consider, for
(^17) Somek, ‘Monism: A Tale of the Undead’ 17. (^1819) Somek, ‘Monism: A Tale of the Undead’ 18 20 Somek, ‘Monism: A Tale of the Undead’ 19.Somek, ‘Monism: A Tale of the Undead’ 17.
example, national laws imposing the liability of the state (including, in some cases, by virtue of judicial acts) for violations of the law, in particular the Constitution. Do we put into question the supremacy of the law and the constitution in the national legal order whenever there is liability for state acts violating it? Liability is an additional instrument of enforcement and supremacy, not a price to be paid in order to be exempted from enforcement and supremacy.
For Somek, the decisive element appears to be the lack of an effective enforcement instrument against recalcitrant Member States. But he measures the enforcement power of EU law in light of an “ideal” that does not correspond to the reality existing in many States. Usually courts do not have any material force to impose on the political process compliance with their decisions.^21 That does not lead us to put into question their legal authority. Even if it can be stated that the European Union lacks the army at the disposal of federal governments, it has other alternative and perhaps more effective instruments in the day-to-day effectiveness of the law. It now has the power to impose fines on States not complying with EU law. This does not exist, for example, in the United States. If there may be greater compliance with the supremacy clause in the United States^22 I don’t think it is due to the enforcement mechanisms at the disposal of the federal government.^23
(^21) There are even examples, at national level, of constitutional decisions that have not been complied with by the political process or only complied after extensive delays. Italian Corte Costituzionale, Decisions No. 826/1988 of 13 July 1988 and No. 420/1994 of 5 December 1994 and No. 466/2002 of 20 November 2002 (all on Mediapluralism). To some extent also German Constitutional Court, Order of 16 May 1995 1 BvR1087/91 (Crucifixes in Bavarian Classrooms). (^22) Which has not always been the case. See R Schütze, From Dual to Cooperative Federalism: The Changing Structure of European Law (^23) See below the discussion on the degrees of constitutional pluralism. (Oxford, Oxford University Press, 2009) ???.
accommodation of the competing constitutional claims helps decreasing the number of times that the question will pose itself.
Another usual empirical challenge departs from the example of the amendments to national constitutions whenever a new Treaty of the EU (or any EU act for that purpose^26 ) collides with a national constitution. Those amendments of national constitutions are presented as evidence of national constitutional supremacy that would, otherwise, prevent the entry into force of the new Treaty.^27 This would be particularly the case when such collision has been ascertained by a national constitutional court and the latter imposes amending the Constitution in order to eliminate such incompatibility.^28 In national systems that allow ex-ante constitutional review of a treaty subject to national ratification (including EU treaty amendments), this requirement of constitutional conformity before the Treaty can be ratified would be evidence that the final authority ultimately rests with national constitutions. However, such constitutional control takes place as part of the ratification process of the treaty and, as such, is better conceived as part of the treaty amendment process itself. In other words, it is more appropriated to talk about such national constitutional ex-ante control as part of the EU law or constitution making process and not as a limit to the supremacy of a EU law that does not yet exist. Moreover, one can question if constitutional amendments generated by EU treaty amendments are, in fact, evidence of EU law subordination to national constitutions. Instead, can they not be
(^2627) Polish Constitutional Court, Decision of 27 April 2005, P 1/05 (European Arrest Warrant). French Constitutional Council, Decision of 9 April 1992 No. 92-308 DC (Maastricht I); German Constitutional Court, Judgement of of 30 June 2009 2 BvE 2/08, para. 113 (Lisbon); Spanish ConstitutionalCourt, Decision of 1 July 1992 Case No. 1263/92 (Maastricht). (^28) Polish Constitutional Court, Decision P 1/05 (European Arrest Warrant).
presented as a requirement imposed by EU law on national constitutions?^29 In fact, whenever a possible conflict was detected between a national constitution and an EU Treaty it was the national constitution that was amended and not the EU Treaty.^30 The same happened when the Polish Constitutional Court declared, in ex-post review, that the EU arrest warrant was contrary to its national constitution. The Polish Court did not declare the EU act inapplicable. Instead, it preserved its application while granting the Polish political process some time to amend the Constitution in order to eliminate such incompatibility.^31
It is for these reasons that some challenge the empirical claim of constitutional pluralism from the opposite direction: the supremacy of EU law would now be the rule and an established fact and that would be so even with respect to national constitutions.^32 This would amount to a monism of EU law, with national courts having changed their primary allegiance towards EU law. The later would provide their rules of recognition or the grundnorm. However, both the statements of national courts (including the usual reconstruction of EU law supremacy as derived from national constitutional law) and their practice defy this narrative.^33 Moreover, if it is
(^29) In this sense, FL Pires, ‘Competência das Competências»: Competente mas sem competências?’, (1998 ) nº3885 (^30) Spanish Constitutional Court, Case No. 1236/92 (Maastricht); French Constitutional Council, Decisions Revista de Legislação e Jurisprudência 356. No. 92-308 DC (Maastricht I) and of 2 September 1992 No. 92-312 DC (Maastricht II); Portuguese Constitutional Court, Decision of 1 February 1989 Case No. 184/89 (ERDF); Cyprian Supreme Court, Decision of 7 November 2005 (European Arrest Warrant). See also the references in J Baquero Cruz, ‘TheLegacy of the Maastricht-Urteil and the Pluralist Movement’ 397 et Seq. (^31) Polish Constitutional Court, Decision P 1/05 (European Arrest Warrant). J Komarek, ‘European Constitutionalism and the European Arrest Warrant: In Search of Limits of “Contrapunctual Principles”’,(2007) 44 Common Market Law Review 9-40, at 19 and also Z Kühn, ‘The European Arrest Warrant, Third Pillar Law and National Constitutional Resistance/Acceptance: The EAW Saga as narrated by the Constitutional Judiciary in Poland, Germany and the Czech Republic’, (2007) 3 European Law & Policy 99-133. Croatian Yearbook of (^3233) See Barents, chapter XXX in this volume; Baquero (rather not)? Check better. See also
‘Contrapunctual Law: Europe’s Constitutional Pluralism in Action’, in N Walker (ed)For a general overview and more detailed presentation of this argument see M Poiares Maduro, Sovereignty in
decisions of other courts, miss the point. The fact that courts continue to narrate the law according to the internal viewpoint of their legal order does not mean that such viewpoint has not been altered by reason of constitutional pluralism. The primary example is how many national courts have interpreted their constitutions so as to incorporate the demands arising from the supremacy claim of EU law without formally accepting, in most cases, such supremacy. The narrator is still the national constitution but the script has changed. What constitutional pluralism claims, in this respect, is that judicial actors have changed the internal perspective of their legal order in order to accommodate the claims of the other legal order. As such, the new internal perspective is informed by constitutional pluralism. Courts are not institutionally blind. Courts are aware of the context of constitutional pluralism and react to it. A different issue is if they react in the best way. The later is a normative question, not an empirical one.
The Normative Claim
While the empirical thesis of constitutional pluralism limits itself to state that the question of final authority remains open, the normative claim is that the question of final authority ought to be left open. Heterarchy^35 is superior to hierarchy as a normative ideal in circumstances of competing constitutional claims of final authority. This normative thesis implies, in practice, another: that those competing constitutional claims are of equal legitimacy or, at least, cannot be balanced against each other in general
(^35) To use the expression of D Halberstam, ‘Constitutional Heterarchy: The Centrality of Conflict in the European Union and the United States’, in J Dunoff and J Trachtman (eds.) Constitutionalism, International Law and Global Governance (Cambridge: Cambridge Univ. Press. 2009) Ruling the World? 326-55.
terms. Therein lays another of the usual challenges to constitutional pluralism: that it recognizes a constitutional order where there is none. Such an unjustified extension of constitutionalism might even end up undermining constitutionalism itself. I will address this particular risk below when discussing the relationship between constitutionalism and constitutional pluralism. For now, I will limit myself to the other issues.
As stated, constitutional pluralism recognizes that there is a constitutional claim of final authority on the part of the European Union. As a normative thesis it assumes, furthermore, that such claim is legitimate. That the claim exists is now largely undisputed.^36 But is it legitimate? Questioning this legitimacy would solve the risk of constitutional conflicts by recognizing the supremacy of national constitutionalism (considered the only or higher legitimate form of constitutionalism). Constitutional pluralism implies, therefore, recognizing the legitimacy of the EU constitutional claim. This is the real starting point of constitutional pluralism in the European Union.^37
Constitutionalism is both possible and necessary in the European Union. But its constitutional claim of authority is not a consequence of the powers the Union has acquired. I am stating this because rather often the constitutional argument for the European Union is based on the need to have constitutionalism as a form of governing and controlling EU power.
(^36) I describe how this claim emerged in Maduro, ‘Contrapunctual Law: Europe’s Constitutional Pluralism in Action’. For other narratives see J Weiler and U Haltern, ‘Constitutional or International? The Foundations of the Community Legal Order and the Question of Judicial Kompetenz-Kompetenz’, in: AMSlaughter, A Stone Sweet and J Weiler (eds..), The European Courts and National Courts – Doctrine and Jurisprudence: Legal Change in its Social Context , (Oxford, Hart Publishing, 1998) 331-364, A Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford, Oxford University Press, 2000) (^16637) As explained by Mayer and Wendel behind the emergence of the similar concept of multilevel et Seq. and constitutionalism was precisely the attempt to argue that the concept of constitutionalism should not belimited to the State and could be applied to the European Union. F Mayer and M Wendel, ‘Multilevel- Constitutionalism and Constitutional Pluralism’, chapter X X X in this volum e.
inclusiveness in national democracies by requiring national political processes to take into account out-of-state interests that may be affected by the deliberations of those political processes. By committing to European integration, EU states accept to mutually open their democracies to the citizens and interests of other Member States. This amounts to an extension of the logic of inclusion inherent in constitutionalism. Second, European constitutionalism allows national democracies to collectively regain control over transnational processes that evade their individual control. While in the former case we can talk of outbounded democratic externalities (States impacting on out-of-state interests), the later refers to inbounded democratic externalities (out-of-state decisions and processes that affect domestic interests). Third, European constitutionalism can also constitute a form of self-imposed external constitutional discipline on national democracies. There are many instances were domestic political malfunctions can be better corrected by external constraints. These may force national political processes to rationalise national policies that have, for example, become path-dependent or captured by certain interests. In many such instances, EU law’s imposed discipline rationalises and, often, reignites a more informed and genuinely open deliberation in the national political process.
This does not ignore that national political communities are still, in many respects, the best forum for pursuing the values of constitutionalism. National constitutionalism is still, in many instances, the best proxy for constitutional values and also serves as a guarantee against possible concentrations and abuses of power from European constitutionalism. The highlighted forms of constitutional added value of European constitutionalism do not provide it with a general claim of supremacy over
national constitutionalism. However, they do provide it with a claim. It is the constitutional added value arising from the mutual correction of each other’s constitutional shortcomings that requires pluralism to be maintained between the national and European constitutional orders. As long as the possible conflicts of authority do not lead to a disintegration of the European legal order, the pluralist character of European constitutionalism should be met as a welcomed discovery and not as a problem in need of a solution.
It is this that also explains why European constitutionalism brings us closer to the ideals of constitutionalism. It is not, in itself, a closer representation of constitutionalism than national constitutionalism but their interplay is. This is what constitutional pluralism argues and therein lays its thicker normative claim, one that relates constitutional pluralism and constitutionalism in general.
The Thick Normative Claim
The thicker normative claim of constitutional pluralism is that, in the current state of affairs, it provides a closer approximation to the ideals of constitutionalism than either national constitutionalism or a form of EU constitutionalism modeled after state constitutionalism. 39 In this way, the pragmatic concern that has dominated earlier writings on constitutional pluralism is turned upside down. Constitutional pluralism is not simply a remedy for the risks of constitutional conflicts of authority; it’s the best representation of the ideals of constitutionalism for the current context of increased pluralism and deterritorialisation of power.^40
(^39) It is unclear the extent to which most constitutional pluralists will support the thick normative claim. I am one who does it. Mattias Kumm and likely Daniel Halberstam will likely share this view. Others, such asNeil Walker, appear to keep a more external and agnostic view on this question. (^40) This notion is developed by Gustavo Zagrebelski in Il Diritto Mite, Torino, Einaudi, 1992.
Constitutional and democratic theory scholars normally presuppose that “a people” already exists.^43 But what makes a people? And who has the right to be considered as part of the people? And why should participation and representation be limited by the requirement of belongingness to such a polity? It is the paradox of the concept of polity in its relation with constitutionalism and democracy. Isn’t a national demos a limit to democracy and constitutionalism? In fact, as discussed above, participation in national democracies is not granted to all those affected by the decisions of the national political process but only to those affected which are considered as citizens of the national polity. It is not the existence of democracy at national level that is contested but the extent of that democracy.^44 There is a problem of inclusion faced by national polities.^45 Such problem of inclusion does not exist simply by not taking the others into account in decisions that affect them. National polities are often closed to many which would accept their political contract. National polities tend to exclude many which would accept their political contract and are affected by their policies simply because they are not part of the demos as understood in a certain ethno, cultural or historical sense. In this way, if national polities can be seen as an instrument of constitutionalism, they also limit its ambitions of full representation and participation.
The same occurs with the paradox of the fear of the few and the fear of the many. All major constitutional arguments and doctrines gravitate around a complex system of countervailing forces set up by constitutional law to (^4344) R Dahl, Democracy and Its Critics (New Haven, Yale University Press, 1989) 3. The difference between the existence of democracy and the extent of democracy is highlighted by J Elster, (^45) Dahl points out that polities have a twofold problem: ‘1 - The problem of inclusion: What persons have a Deliberative Democracy (Cambridge, Cambridge University Press, 1988) 99. rightful claim to be included in the demos; 2 - The scope of its authority: What rightful limits are there onthe control of a demos’, supra 119. See also David Held, Democracy and the Global Order (Cambridge and Oxford, Polity Press, 1995) mainly chapters 1 and 10.
promote the democratic exercise of power (assure that the few do not rule over the many) but, at the same time, to limit that power (assuring that the many will not abuse of their power over the few). There are two basic fears underlying constitutional discourse and organisation: the fear of the many and fear of the few. The core of constitutional law is the balance between the fear of the many and the fear of the few. Constitutional law sets up the mechanisms through which the many can rule but, at the same time, creates rights and processes for the protection of the few.^46
The final paradox is that of who decides who decides? In reality, the question of “who decides who decides”, that appears to dominate debates about the relationship between national and EU constitutionalism, has long been around in constitutionalism. It is a normal consequence of the divided powers system inherent in constitutionalism. In fact, it can be considered as an expected result of the Madisonian view of separation of powers as creating a mechanism of checks and balances. Though national constitutions may have developed historically answers to that question they are a contextual product of certain constitutional practices and not a systemic feature of constitutionalism. On the contrary, the nature of the organisation of power inherent in constitutionalism requires the question to be open and periodically reassessed.
(^46) Bellamy highlights three principles who have defined constitutionalism: rights, separation of powers and representative government. However, in his view, the first has come to predominate in recent years:‘Rights, upheld by judicial review, are said to comprise the prime component of constitutionalism, providing a normative legal framework within which politics operate’, Bellamy, ‘The Political Form of the Constitution: the Separation of Powers, Rights and Representative Democracy’, in R Bellamy and DCastiglione (eds.) Constitutionalism in Transformation: European and Theoretical Perspectives (Oxford, Blackwell Publishers, 1996) 24-44. Note that Bellamy is, himself, a critical of that dominant view ofconstitutionalism. See Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy, Cambridge University Press, 2007.
