This book explains the challenge of constitutional pluralism and its importance, showing its theoretical and practical relevance, and giving a sense of why the existing scholarship on the matter is unsatisfactory. The work explores how legal practitioners and theorists have faced the challenge of a society living under two constitutions at the same time. This comes as the European Union, which legally and politically integrates Europe and seems to challenge the view that no State can simultaneously abide by both the venerable national constitutions and the ever-developing EU constitutional law, is increasingly torn between calls for closer integration to face collective challenges and mounting Euroscepticism and nationalism. This work employs a strongly pluralist perspective and a comparative methodology, and looks at constitutional crises outside the EU to ground the claim that pluralism and conflicts are essential elements of modern constitutions. It shows how the challenge of constitutional pluralism depends on a mistaken interpretation of positivist theory and how the latter, reinterpreted in a manner close to legal realism, has the resources to explain pluralism. Finally, the book addresses the issue of constitutional conflicts within the EU: it examines in detail recent cases of open disobedience to EU law by national courts and distinguishes physiological conflict from constitutional pathology. This work will be of particular interest to students and academics in Law and Political Science. It will also be compelling reading for scholars in general jurisprudence, EU law, constitutional and comparative constitutional law, and the history of European integration.
Author(s): Orlando Scarcello
Publisher: Routledge
Year: 2022
Language: English
Pages: 175
City: London
Cover
Half Title
Title Page
Copyright Page
Dedication
Table of Contents
Acknowledgements
1 Introduction: The Riddle of Constitutional Pluralism
1.1 Legal Pluralism
1.2 Constitutional Pluralism in Europe
1.3 Radical Pluralism, Positivism, Comparative Law
1.4 Plan of the Book
2 Constitutional Pluralism in Theory and Practice
2.1 Premise: 1993, Annus Mirabilis
2.2 Constitutional Pluralism in Court: Three Judgments
2.2.1 Opinion 2/13 and the Autonomy of EU Law
2.2.2 The Maastricht Urteil: The Masters of the Treaties’ Oracle
2.2.3 Granital: Pluralism and Institutionalism
2.2.4 Comparative Assessment
2.3 The Debate On Pluralism: New Incarnation of Constitutionalism Or Oxymoron?
2.4 Conclusion: Back to 1993
3 Revisiting Radical Pluralism: The Jurisprudence of Neil MacCormick and Beyond
3.1 Introduction
3.2 MacCormick’s Pluralism: From Beyond the Sovereign State to The Risk of Constitutional Conflict
3.2.1 Shaping Radical Pluralism (1993–1997)
3.2.2 Pluralism Under International Law: 1998–1999
3.3 Pluralism Under International Law: A Critique
3.3.1 The Hart–Kelsen Debate On International Law
3.3.2 The Paradox of Pluralism Under International Law
3.4 Revisiting Radical Pluralism
4 Constitutional Disagreement: Pluralism in Composite and Unitary Legal Systems
4.1 Introduction
4.2 Federalism and Constitutional Pluralism: On Unions of States
4.2.1 The Antebellum USA: Divided Sovereignty, Interposition, and Nullification
4.2.2 A View On the EU From America: A Union of States
4.3 Constitutional Pluralism Within the State: Harris v. Dönges and Beyond
4.3.1 Harris V. Dönges: Uncertainty On the Rule of Recognition
4.3.2 Interpretive Pluralism in Practice
4.4 The Grammar of Legality
5 Interpretive Disputes and Ultra Vires Judgments in European Pluralism
5.1 Introduction
5.2 Interpretive Disputes in European Pluralism: The Taricco Saga
5.3 Ultra Vires Judgments in Europe
5.3.1 Landtová – Holubec
5.3.2 Dansk Industri-Ajos
5.3.3 Weiss-PSPP
5.3.4 K-3/21
5.3.5 Comparative Assessment
5.4 Conclusion
6 Epilogue: The Limits of Jurisprudence
Bibliography
Index
