Edited by Gareth Davies and Matej Avbelj
Chapter 19: Discretion, not rules: postunitary constitutional pluralism in the Economic and Monetary Union
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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