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AbstractThis article examines the origins of the concept of constitutional pluralism that has emerged in the last decade and it critically assesses the claims of its advocates. It argues that the claims made on behalf of the concept cannot be sustained and seeks to show that constitutional pluralism is an oxymoronic concept.

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.

Constitutional pluralism has long been controversial, but has recently come under renewed attack. Critics allege that by justifying departure by national courts from the Court of Justice of the European Union's (CJEU) orthodoxy on the primacy of EU law, constitutional pluralism is (at best) susceptible to abuse by autocratic member state governments, or is (at worst) a favored tool of Europe's new authoritarians. This article is a defense of heterodoxy in European constitutional thought, and of constitutional pluralism in particular. It uses the concept of "loyal opposition" as a framing discourse, allowing us to see that heterodox approaches to EU constitutionalism and opposition to the received and dominant interpretation of the primacy of EU law are not necessarily any less "loyal" to the principles and values of European integration than agreement with the CJEU. A "legitimacy test" is proposed, by which we can determine whether a given instance of national judicial disagreement with the CJEU is loyal, principled opposition, or disloyal, abusive opposition.

Enthält Rezension von: Jaklic, Klemen: Constitutional pluralism in the EU. - Oxford : Oxford University Press, 2014