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 19: Discretion, not rules: postunitary constitutional pluralism in the Economic and Monetary Union

Matthias Goldmann


This chapter first explains the epistemological underpinnings that make constitutional pluralism a paradox defying unitary solutions such as monism or primacy. The paradoxical nature of constitutional pluralism in the European Union does not, however, inevitably lead to instability in the relations between different legal orders, or to assaults on legal certainty. Reconstructing the vertical and horizontal relationships between different legal orders or spheres of competence in the European legal space, the chapter argues that the actors involved frequently seek to stabilize them by ‘mutually assured discretion’. This designates a relationship between two legal orders (or two actors) organized by interdependent legal concepts which are often deliberatively vague and grant actors in each legal order (or sphere of competence) a fair amount of discretion, while their decisions remain subject to contestation through rational discourse. This entices self-discipline within actors in both legal orders (or spheres of competence).

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