This article explains why autocrats love constitutional pluralism and constitutional identity. Though these concepts were developed by scholars and jurists with the best of intentions in mind, we explain why they are also attractive to and inherently prone to abuse by autocrats. We then describe how the regimes in Hungary and Poland have made use of these concepts in their drive to consolidate autocracy. We conclude that given the dangers inherent in constitutional pluralism and its susceptibility to abuse, it should be replaced with a more traditional understanding of the primacy of EU law.
{"title":"The Uses and Abuses of Constitutional Pluralism: Undermining the Rule of Law in the Name of Constitutional Identity in Hungary and Poland","authors":"Daniel Kelemen, Laurent Pech","doi":"10.1017/cel.2019.11","DOIUrl":"https://doi.org/10.1017/cel.2019.11","url":null,"abstract":"This article explains why autocrats love constitutional pluralism and constitutional identity. Though these concepts were developed by scholars and jurists with the best of intentions in mind, we explain why they are also attractive to and inherently prone to abuse by autocrats. We then describe how the regimes in Hungary and Poland have made use of these concepts in their drive to consolidate autocracy. We conclude that given the dangers inherent in constitutional pluralism and its susceptibility to abuse, it should be replaced with a more traditional understanding of the primacy of EU law.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-11-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cel.2019.11","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47898643","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The ratification difficulties associated with the Maastricht Treaty — not least the German Bundesverfassungsgericht ’ s (BVerfG) assertion of the supremacy of the German constitution during German ratification 1 — and its creation of a ‘ Europe of Bits and Pieces ’ , 2 signalled a watershed in the European integration project and a move away from the federalist-oriented ‘ permissive consensus ’ which had marked the preceding era. 3 Even if the idea of crisis in European integration was not new, 4 it is no exaggeration to say that Maastricht was the beginning of an era of semi-permanent crisis in European integration. 5 Crisis can, however, be ‘ salutary ’ . 6 The post-Maastricht era was marked by a flour-ishing of creative new thinking about the integration project in the legal academy, offering fresh insights and ideas about European legal integration beyond the con-ventional neo-functionalist and federalist accounts. 7 Perhaps one of the most endur-ing of these new ‘ dynamics ’ of legal integration 8 was MacCormick ’ s constitutional pluralism. When Neil MacCormick first articulated his preliminary thoughts on the
{"title":"Symposium – Crisis and Constitutional Pluralism in the European Union","authors":"Cormac Mac Amhlaigh","doi":"10.1017/cel.2019.10","DOIUrl":"https://doi.org/10.1017/cel.2019.10","url":null,"abstract":"The ratification difficulties associated with the Maastricht Treaty — not least the German Bundesverfassungsgericht ’ s (BVerfG) assertion of the supremacy of the German constitution during German ratification 1 — and its creation of a ‘ Europe of Bits and Pieces ’ , 2 signalled a watershed in the European integration project and a move away from the federalist-oriented ‘ permissive consensus ’ which had marked the preceding era. 3 Even if the idea of crisis in European integration was not new, 4 it is no exaggeration to say that Maastricht was the beginning of an era of semi-permanent crisis in European integration. 5 Crisis can, however, be ‘ salutary ’ . 6 The post-Maastricht era was marked by a flour-ishing of creative new thinking about the integration project in the legal academy, offering fresh insights and ideas about European legal integration beyond the con-ventional neo-functionalist and federalist accounts. 7 Perhaps one of the most endur-ing of these new ‘ dynamics ’ of legal integration 8 was MacCormick ’ s constitutional pluralism. When Neil MacCormick first articulated his preliminary thoughts on the","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-11-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cel.2019.10","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45154522","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
To the extent that the UK's decision to withdraw from the EU can be interpreted as a reassertion of the classic ideas of Westphalian sovereign statehood, it questions the relevance of constitutional pluralism as a resolutely ‘post-sovereign’ model of relations between state administrations and their supranational counterparts. This contribution will therefore examine the usefulness and relevance of the idea of constitutional pluralism after Brexit. It looks at the various features and relationships affected by the Brexit process analysing the relevance of constitutional pluralism to each relationship pre- and post-Brexit, concluding that, whereas Brexit clearly affects the different relationships involved, constitutional pluralism can and will remain relevant to EU/UK relations as well as within the EU, well into the future.
{"title":"Back to a Sovereign Future?: Constitutional Pluralism after Brexit","authors":"Cormac Mac Amhlaigh","doi":"10.1017/cel.2019.8","DOIUrl":"https://doi.org/10.1017/cel.2019.8","url":null,"abstract":"To the extent that the UK's decision to withdraw from the EU can be interpreted as a reassertion of the classic ideas of Westphalian sovereign statehood, it questions the relevance of constitutional pluralism as a resolutely ‘post-sovereign’ model of relations between state administrations and their supranational counterparts. This contribution will therefore examine the usefulness and relevance of the idea of constitutional pluralism after Brexit. It looks at the various features and relationships affected by the Brexit process analysing the relevance of constitutional pluralism to each relationship pre- and post-Brexit, concluding that, whereas Brexit clearly affects the different relationships involved, constitutional pluralism can and will remain relevant to EU/UK relations as well as within the EU, well into the future.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-11-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cel.2019.8","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49031417","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article argues that discourses of constitutional pluralism contain a strong normative core which is made up of a series of largely unacknowledged implicit claims about legitimacy and community. This argument is illustrated by reference to various constitutional pluralist responses to the Hungarian Constitutional Court's ruling concerning the protection of constitutional identity in the context of EU asylum and refugee protection law and policy, demonstrating that whether this decision falls ‘inside’ or ‘outside’ constitutional pluralist tolerance depends on how the observer defines the minimum amount of shared substantive or procedural content that is fundamental to the EU order.
{"title":"Constitutional Pluralism's Unspoken Normative Core","authors":"J. Lawrence","doi":"10.1017/cel.2019.12","DOIUrl":"https://doi.org/10.1017/cel.2019.12","url":null,"abstract":"This article argues that discourses of constitutional pluralism contain a strong normative core which is made up of a series of largely unacknowledged implicit claims about legitimacy and community. This argument is illustrated by reference to various constitutional pluralist responses to the Hungarian Constitutional Court's ruling concerning the protection of constitutional identity in the context of EU asylum and refugee protection law and policy, demonstrating that whether this decision falls ‘inside’ or ‘outside’ constitutional pluralist tolerance depends on how the observer defines the minimum amount of shared substantive or procedural content that is fundamental to the EU order.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-11-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cel.2019.12","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41843904","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The idea that EU treaties have become too difficult to amend is a recurring one. This Article explores changing national constitutional rules and norms in the consent stage of EU treaty making in twenty-eight Member States between 1950 and 2016, asking how parliaments, people, and courts came to be much more significant for consent, what the consequences of this shift are, and offering some tentative proposals as to how the challenges this raises could be addressed. EU treaty making has become more complex, but we argue that treaties should be more rather than less difficult to amend where concerns over two-level legitimacy rather than two-level games predominate.
{"title":"The Necessary Complexity of Consent: Rules and Norms in EU Treaty Making","authors":"D. Hodson, I. Maher","doi":"10.1017/cel.2019.17","DOIUrl":"https://doi.org/10.1017/cel.2019.17","url":null,"abstract":"The idea that EU treaties have become too difficult to amend is a recurring one. This Article explores changing national constitutional rules and norms in the consent stage of EU treaty making in twenty-eight Member States between 1950 and 2016, asking how parliaments, people, and courts came to be much more significant for consent, what the consequences of this shift are, and offering some tentative proposals as to how the challenges this raises could be addressed. EU treaty making has become more complex, but we argue that treaties should be more rather than less difficult to amend where concerns over two-level legitimacy rather than two-level games predominate.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cel.2019.17","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42957575","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article explores the justifications for, and objections to, the proposed European Union ‘women on company boards’ Directive. It notes that Member State opposition to the measure had different emphases. The new, post-socialist Member States that intervened prominently questioned the Commission's understanding of the underlying social reality of gender inequality and the measure's focus on results, while the old Member States that intervened raised mainly the issue of subsidiarity and challenged the need for legislative action, and/or particularly the need for legislative action at EU level. The article further argues that the Commission weakened its case by emphasising economic rationales for the measure, and submits that a principled justification fits the proposal better. Finally, the article argues that subsidiarity-related arguments are available also to justify non-cross-border, non-economic projects, such as that of gender equality.
{"title":"Women on Company Boards: Equality Meets Subsidiarity","authors":"B. Havelková","doi":"10.1017/cel.2019.6","DOIUrl":"https://doi.org/10.1017/cel.2019.6","url":null,"abstract":"This article explores the justifications for, and objections to, the proposed European Union ‘women on company boards’ Directive. It notes that Member State opposition to the measure had different emphases. The new, post-socialist Member States that intervened prominently questioned the Commission's understanding of the underlying social reality of gender inequality and the measure's focus on results, while the old Member States that intervened raised mainly the issue of subsidiarity and challenged the need for legislative action, and/or particularly the need for legislative action at EU level. The article further argues that the Commission weakened its case by emphasising economic rationales for the measure, and submits that a principled justification fits the proposal better. Finally, the article argues that subsidiarity-related arguments are available also to justify non-cross-border, non-economic projects, such as that of gender equality.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cel.2019.6","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47026076","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Constitutional pluralism is a theory for the post-sovereign European state. This only makes sense historically, emerging out of postwar European reconstruction through the repression of popular sovereignty and restraining of democracy, including through the project of European integration. It became unsettled at Maastricht and evolved from a series of irritants into a full-blown crisis in the recent decade, with sovereignty claims returning both from the bottom-up and the top-down, to the extent that we can legitimately ask whether we are now moving ‘beyond the post-sovereign state’? Constitutional pluralist literature fails to capture this in that evades material issues of democracy and political economy.
{"title":"Beyond the Post-Sovereign State?: The Past, Present, and Future of Constitutional Pluralism","authors":"Michael A. Wilkinson","doi":"10.1017/CEL.2019.9","DOIUrl":"https://doi.org/10.1017/CEL.2019.9","url":null,"abstract":"Constitutional pluralism is a theory for the post-sovereign European state. This only makes sense historically, emerging out of postwar European reconstruction through the repression of popular sovereignty and restraining of democracy, including through the project of European integration. It became unsettled at Maastricht and evolved from a series of irritants into a full-blown crisis in the recent decade, with sovereignty claims returning both from the bottom-up and the top-down, to the extent that we can legitimately ask whether we are now moving ‘beyond the post-sovereign state’? Constitutional pluralist literature fails to capture this in that evades material issues of democracy and political economy.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-06-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CEL.2019.9","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47906315","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines counter-terrorism efforts in the EU as it matures as a field of law. It sets out three critiques of EU counter-terrorism law: that of ineffectiveness, of anti-constitutionalism, and of contrariness to human rights and the rule of law. It considers these critiques in light of the development of policies and legal initiatives—against foreign terrorist fighters and against radicalisation. It concludes that there are both persistent problems, and some improvements, in the law. The EU's capacity to meet the challenges posed by terrorism and the counter-terrorism imperative, and how it does so, has global impact. The article concludes with an argument for better law-making in the EU to ensure it serves as a better exemplar of transnational law.
{"title":"EU Counter-terrorism Law: What Kind of Exemplar of Transnational Law?","authors":"C. Murphy","doi":"10.1017/CEL.2019.7","DOIUrl":"https://doi.org/10.1017/CEL.2019.7","url":null,"abstract":"This article examines counter-terrorism efforts in the EU as it matures as a field of law. It sets out three critiques of EU counter-terrorism law: that of ineffectiveness, of anti-constitutionalism, and of contrariness to human rights and the rule of law. It considers these critiques in light of the development of policies and legal initiatives—against foreign terrorist fighters and against radicalisation. It concludes that there are both persistent problems, and some improvements, in the law. The EU's capacity to meet the challenges posed by terrorism and the counter-terrorism imperative, and how it does so, has global impact. The article concludes with an argument for better law-making in the EU to ensure it serves as a better exemplar of transnational law.","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-06-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CEL.2019.7","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46266616","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"CEL volume 20 Cover and Back matter","authors":"","doi":"10.1017/cel.2018.14","DOIUrl":"https://doi.org/10.1017/cel.2018.14","url":null,"abstract":"","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":"20 1","pages":"b1 - b3"},"PeriodicalIF":0.0,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cel.2018.14","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45625068","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"CEL volume 20 Cover and Front matter","authors":"","doi":"10.1017/cel.2018.13","DOIUrl":"https://doi.org/10.1017/cel.2018.13","url":null,"abstract":"","PeriodicalId":52109,"journal":{"name":"Cambridge Yearbook of European Legal Studies","volume":"20 1","pages":"f1 - f4"},"PeriodicalIF":0.0,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cel.2018.13","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41749810","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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