This Afterword examines the changing nature of the legal pluralist debate as regards the European Union, and how it reflects the developing social and political context. In the 1990s, the pluralist question came to the surface in response to the differing attitudes of the Court of Justice and national constitutional judges over the question of final judicial authority in the EU. The debate was a product of supranational strength and national anxiety in the face of that strength. Today, the EU stands in a less sure position, buffeted by a number of economic, social and political crises. The pluralist debate has broadened to take account of these crises. No longer confined to the judicial sphere, its continuing relevance depends on its connecting these legal questions to broader questions of the very sustainability of the EU’s deeper political pluralism.
Constitutionalism presupposes one authoritative frame for the political domain, paradigmatically shaped as the state. Yet notions of unity, closure and hierarchy contrast with the diversity, unsettlement and heterarchical accommodation associated with political pluralism. The tensions between formal unity and material pluralism capture much that is distinctive of constitutionalism today. The chapter examines two ways that constitutional practice entertains political pluralism, namely, within a single constitutional order through ‘plural constitutionalism’, and between constitutional orders through ‘constitutional pluralism’. The chapter also addresses the (dis)continuity between these approaches. To what extent can we view these as the product of a single ‘constitutional ethic’?
This chapter revisits the question of the nature of a post-state or cosmopolitan constitutionalism, and of its merits in comparison to state-centred constitutionalism, by reference to a number of deep-rooted antinomies within constitutional thought and practice. The first concerns the structural dimension of constitutionalism, in particular the tension between constitutionalism as an integrated achievement, its features embedded in the specific polity so as to form an indivisible whole, and constitutionalism as a disaggregable achievement, capable of abstraction from the particular polity and, in its abstract form, separable into various generic attributes. The second concerns the ethical dimension of constitutionalism; more specifically the tension between a particular and polity-centred and a universal and polity-transcending understanding of constitutional principles and doctrines. The third concerns the functional dimension of constitutionalism, and in particular the tension between gubernaculum and jurisidictio – between an emphasis upon governing capacity and an emphasis upon constraining public power. The fourth and last antinomy concerns the socio-cultural dimension of constitutionalism, and in particular the tension between constitutionalism as investment in an already established political way of being, and constitutionalism as a blueprint for progress – a future-oriented project of political community. State constitutionalism has sought, with greater or less success, to find a balance between these various contending forces. Post-national constitutionalism, in contrast, tends to gloss over the antinomic structure of constitutionalism and to take a one-sided approach within each dimension, emphasizing abstraction and disaggregation, universalism, jurisdictio and projection against their more culturally grounded alternatives. How prevalent and unavoidable is this tendency, and with what consequences for the legitimacy of transnational constitutional claims?