Constitutional Pluralism as a Normative Theory

Abstract

AbstractIn this chapter, it is demonstrated that constitutional pluralism has a strong normative core, ensuring that the essential values shared by all Member States and the European Union itself are preserved in the pluralist framework. The normative core that is shared by all participants of the system is codified in Article 2 TEU, representing the minimum requirements for Union membership. In addition, constitutional pluralism as a theory embraces constitutional conflict, which is not a bug, but an important feature of the system. The emergence of constitutional conflict in this constellation is a regular and desirable feature of the system that promotes an interactive development of law and puts in place checks and balances between different sites of constitutional authority. The chapter further distinguishes between constructive and destructive constitutional conflict in the jurisprudence of the courts under analysis. When constitutional conflict entails a breach of the basic values in Article 2 TEU and lacks any trace of sincere cooperation and mutual respect, we are speaking of destructive conflict that can only be resolved by both political and legal means. These categories serve to assess the normative operation of constitutional pluralism. The descriptive and normative prima facie assumptions of constitutional pluralism are tested in full detail in the case studies in Chapters 2 to 4.