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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.

First published online: 09 June 2021 ; This article compares the conceptions of proportionality in the Weiss judgment of the Court of Justice of the European Union (ECJ) and the PSPP judgment of the German Constitutional Court (GCC). It will be pointed out that the two courts embrace a quite similar view when it comes to the structure of the test for proportionality, but a different one on the intensity of review. While the ECJ accepts a minimalist 'manifest error' standard of review, the GCC performs a more demanding scrutiny. As a result, the two judgments expose different conceptions of the "unity" of public law: all decisions by public authorities can become the subject of judicial scrutiny through a proportionality assessment, but the intensity of review can vary greatly. This, in turn, brings about serious consequences for the relations between reviewing and reviewed authorities. Finally, it will be claimed that the inner limitations of proportionality make strong views on the "correct" method for carrying out the test problematic.

AbstractIn this essay the question of what kind of conflicts are at stake in the context of European pluralism will be considered, with special focus on the shift from "conflicts by divergence" to "conflicts by convergence" and on attempts to conceptualise these issues by means of the concept of "complex antinomy". It will be argued that this analysis needs some refinement and the concept of "levels of disagreements" will be introduced as an alternative. A specific focus will be maintained on the impact of different interpretive methodologies: in this way it is possible to underline the structure of "deep" and "superficial" disagreements in the context of European law. In order to illustrate this point, some notes on the recent Taricco saga will be developed. Finally, the relevance for European constitutionalism of deep disagreements on interpretive methodologies will be underlined.