Published online by Cambridge University Press: 18 September 2019
Constitutional pluralism is a theory for the post-sovereign European state. This only makes sense historically, emerging out of postwar European reconstruction through the repression of popular sovereignty and restraining of democracy, including through the project of European integration. It became unsettled at Maastricht and evolved from a series of irritants into a full-blown crisis in the recent decade, with sovereignty claims returning both from the bottom-up and the top-down, to the extent that we can legitimately ask whether we are now moving ‘beyond the post-sovereign state’? Constitutional pluralist literature fails to capture this in that evades material issues of democracy and political economy.
I would like to thank Cormac Mac Amhlaigh and Kenneth Armstrong for comments on an earlier draft.
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13 The idea of pluralism under international law is, he concludes, ‘contextually more persuasive and appropriate’ (MacCormick, Questioning Sovereignty, note 3 above, p 121). Although if the discretion of national courts is qualified by their international obligations, there is little specification of precisely what those entail (see eg ibid, p 117).
14 See eg ibid, p 10.
15 MacCormick, note 1 above, p 16. Repeated less assertively in MacCormick, Questioning Sovereignty, note 3 above, p 126. In the final iteration, eschewing any form of radical pluralism, MacCormick suggests that conflicts between domestic and EU law should ultimately be determined, in Kelsenian fashion, by norms of international law.
16 MacCormick, Questioning Sovereignty, note 3 above, ch 9.
18 Ibid, pp 94–95. Since, according to the internal view of UK officials sovereignty remains with the UK constitution, but according to EC officials it lies with the Treaties, MacCormick argues that the theorist seeking a disinterested perspective ‘can entertain both or several views cognitively, suspending any question of volitional commitment to one or another. Instead of committing oneself to a monocular vision dictated by sovereignty theory, one can embrace the possibility of acknowledging differences of perspective, differences of points of view’. MacCormick, note 1 above, p 6.
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20 Italics added.
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57 See Vauchez, Cohen, and Rassmussen, note 36 above.
58 On the significance of sovereignty claims and sovereignty frames to the concept of sovereignty, see Walker, N, ‘Sovereignty Frames and Sovereignty Claims’ in Rawlings, R, Leyland, P, and Young, A (eds) Sovereignty and the Law: Domestic, European and International Perspectives (Oxford University Press, 2013)Google Scholar.
59 Constitutional pluralism has an ambiguous relationship with the German Constitutional Court in general and its Maastricht-Urteil in particular. (Brunner, note 7 above). The significance of that judgment for generating the momentum for constitutional pluralist scholarship can hardly be doubted. But constitutional pluralism appears a defensive rear-guard reaction to its judgments, a series of attempts to domesticate them, to temper their potentially harmful effects on the European constitutionalist project and the post-sovereign condition.
60 See MacCormick, note 10 above, and MacCormick, Questioning Sovereignty, note 3 above, p 265.
61 MacCormick, note 10 above, p 259.
62 MacCormick, Questioning Sovereignty, note 3 above, p 265.
63 BVerfGE, 123/267 Judgment of 30 June 2009.
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74 Ibid, p 152. Elusively, and all too briefly, he skirts over ‘whatever storm clouds now hover over the prospects for the single currency’ (ibid, p 155). MacCormick was far from the only one to succumb to what Majone later characterized as the ‘culture of total optimism’. Majone, G, Rethinking the Union of Europe Post-Crisis: Has Integration Gone Too Far? (Cambridge University Press, 2014), pp 58–87CrossRefGoogle Scholar.
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82 See eg Scharpf, note 79 above. In fact, as Scharpf explains, the logic was already grasped by Hayek in the 1930's in his work on interstate federation.
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