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 12: The false promise of constitutional pluralism

Nik de Boer

Abstract

The chapter argues that constitutional pluralism has insufficiently taken into account democratic concerns about the institutional position of national constitutional courts. Pluralists accept constitutional disagreement between the EU and its Member States, but on this basis generally see the possible constitutional conflict generated by national constitutional courts as fruitful. The articulation of national constitutional limits to the primacy of EU law is valued because it opens a space for contestation or dialogue that is preferable over the rigid hierarchy imposed by EU law. The chapter argues as to why such constitutional disagreements are better addressed in a democratic political process. Yet, where constitutional courts articulate constitutional limits to European integration, they are likely to constrain political institutions in addressing constitutional questions themselves. Constitutional pluralism therefore presents a false promise: It promises a more legitimate way to resolve constitutional disagreements than its hierarchical alternatives, yet it will often lead to the opposite.

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