Research Handbook on Legal Pluralism and EU Law
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Research Handbook on Legal Pluralism and EU Law

Edited by Gareth Davies and Matej Avbelj

The Research Handbook on Legal Pluralism and EU Law explores the diversity of phenomenon of overlapping legal systems within the European Union, the nature of their interactions, and how they deal with the difficult question of the legal hierarchy between them. The contributors reflect on the history, sociology and legal scholarship on constitutional and legal pluralism, and develop this further in the light of the challenges currently facing the EU.
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Chapter 6: Constitutional conflicts and agonistic pluralism: what can we learn from political theory?

Giuseppe Martinico

Abstract

This chapter attempts to develop an alternative theoretical proposal on the role of conflicts in European constitutional law. The starting point is represented by the ambiguous role of conflicts in the account proposed by constitutional pluralists. Starting from these considerations, the chapter explores the role of conflicts in light of what Mouffe called ‘conflictual consensus’. First, it stresses how constitutional pluralism has always struggled with conflicts, from MacCormick to the most recent variations. Secondly, it looks at Art. 4.2 TEU to show how a provision codified with the intent to tame constitutional conflicts has de facto increased the interpretative competition between courts and, therefore, the risk of disagreement between them. Finally, it attempts to offer another theoretical reading of such developments in order to recognise the positive role that constitutional conflicts may have in European constitutional law.

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