Constitutional Pluralism in the European Union and Beyond by Komárek Jan. Avbelj Matej

Author:Komárek, Jan.,Avbelj, Matej.
Language: eng
Format: epub
ISBN: 9781847318923
Publisher: Bloomsbury UK

9

Out with the New, in with the Old – Neo-Roman Constitutional Thought and the Enigma of Constitutional Pluralism in the EU

OLA ZETTERQUIST

I. Introduction

Constitutional pluralism within the EU primarily concerns the question of whether the EU can be considered to be a separate and independent legal order in co-existence with the legal orders of the Member States. The notion of constitutional pluralism is controversial mainly because it challenges both the notion of sovereignty (and the sovereign state) and the concept of the unity of the legal order. Taken seriously, constitutional pluralism is incompatible with the traditional and immensely influential models of formal norm-hierarchy (formal legitimacy), developed by Hans Kelsen, and sovereignty, developed originally by Thomas Hobbes. It will be argued that these problems arise as a consequence of a) a formal account of constitutionality and b) an institutional understanding of the notion of freedom as non-interference. I will claim that another approach based on substantive constitutionality (res publica) and freedom understood as non-domination, may be more helpful in (normatively) explaining the idea of constitutional pluralism in the EU. In doing so, this Chapter will analyse the enigma of constitutional pluralism within the EU seen through the lens of a neo-Roman republican constitutional theory drawing inspiration from both classical authors, such as Cicero and Machiavelli, and modern ones such as Skinner, Pettit, and Dworkin.

The focus of this Chapter will be the issues of sovereignty and the character of the legal order as seen through a republican prism. I will, however, not address the issue of whether the republican theory is fundamentally at odds with liberalism in other aspects not related to sovereignty.

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.