23 Oktober 2018

Constitutional Pluralism between Normative Theory and Empirical Fact

It has been recently floated in legal academia and the blogosphere that it is high time for constitutional pluralism to bow out of the European scene. The reason? It has been alleged to be (1) “fundamentally flawed and unsustainable” for allowing the application of EU law to be selective and unequal and (2) prone to abuse by autocrats, as demonstrated by the ongoing dismantling of democracy and the rule of law in Hungary and Poland where national (“constitutional”) identity is invoked all too often to justify patently illiberal policies.

Is constitutional pluralism really to blame? What is this beast anyway? In this short comment I would like to make a fairly straightforward but fundamental difference in approaching constitutional pluralism as an “is” or an “ought”1) Critical theorists and many psychologists might object to the very possibility of distinguishing the “is” from the “ought” – what is out there in the world and what should be. I maintain that this distinction is rationally possible even if in many situations our perception of “is” is tainted by our normative standpoint (the “should”).. I would argue that regardless of one’s perspective on the latter, constitutional pluralism is at least to some extent an empirical fact in the EU, one that needs to be reckoned with whatever our misgivings about the actions of Polish and Hungarian autocrats. I believe we should resist our “oughts” cloud the “is” of the European constitutional constellation.

Constitutional pluralism as a normative theory

It is far beyond the scope of this text to discuss the voluminous academic literature on constitutional pluralism. Surely, not all authors writing within that tradition have stipulated that constitutional pluralism is not merely the observable state of affairs, but in fact the desired one. However, the normative scholarship – and here normative is taken in its most common social science sense of signifying “ought” as distinct from “is” (which is empirical) – which emphasized that constitutional pluralism is the “right” state of affairs, is not illusory.

It would seem to me to be a perfectly legitimate – if debatable – theoretical standpoint that a heterarchical (pluralist) arrangement can be preferable to a hierarchical one, with each supporting at least partially different sets of beliefs about the world. In the case of constitutional pluralism in Europe, a simplified normative assertion might be that it is preferable that the ultimate seat of judicial authority differs – within discernible and mutually agreed limits – per level in a multi-layered polity, as this way diverging local preferences need not be inevitably stamped out for the sake of uniformity by a single judicial authority (imposing its own preferences on everyone, which impacts some more than others). The underlying belief might be that local preferences – cultural, legal, political – are worth protecting (once again, within limits).

The autocratic governments of Hungary and Poland are of course taking this normative position to its boundaries, or more precisely, beyond. Most constitutional pluralists would agree that there are constraints on how much latitude different seats of authority are entitled to within a given polity. This could hardly accommodate a challenge to the basic communicative mechanism of Article 267 TFEU as recently proposed in Poland. If we say that judicial independence is one such constraint for coexistence within the EU, then the Member States need to respect it, even if different ways of operationalizing the commitment might exist. There is no respectable interpretation of judicial independence which the actions of the Polish and Hungarian governments could conform to.

As a side-note, I am also not entirely convinced by the occasionally advanced argument that pluralist scholars have “empowered” Polish and Hungarian autocrats with their ideas. Any idea is potentially prone to misuse and misinterpretation, especially by autocratic regimes. Pluralist scholars have certainly not developed their normative theory to serve autocrats. That their scholarship and positions have been adopted by autocrats might force them to re-evaluate their worldviews and perhaps emphasize common constraints within constitutional pluralism but generally going by what autocrats and kleptocrats say is probably not a great guide to doing academic research.

Constitutional pluralism as an empirical fact

In any case, it is not my point here to defend the normative standpoint of constitutional pluralism (to which I do not particularly subscribe); that endeavour is best left to normative theorists. On the contrary, I think that regardless of where one stands on the normative spectrum – how should the EU be constitutionally organized? – it should be possible to agree that constitutional pluralism is to some extent an empirical fact of life within the EU as it exists at the moment.

The most obvious evidence for this (alleged) fact can be found in the Treaties. Article 4(2) TEU explicitly tells the EU to respect Member States’ national identities. If national identities imply constitutional identities, then some (unspecified) idea of constitutional pluralism was intentionally hard-wired into the Treaties by the Member States. What, on the contrary, was distinctly not included in the Treaty of Lisbon is the codification of the principle of supremacy of EU law over national law. Both the national identity and the supremacy clause were part of the Constitution Treaty (Article I-5 and 6 respectively) but only the former survived the redaction that followed popular rejection in France and the Netherlands in 2005, with the supremacy text ostensibly relegated to a non-binding declaration. On this reading, recognizing constitutional pluralism, albeit without specifying it, was a response to domestic democratic preferences.

While Member States tip-toe on committing to hierarchical federalism, national judiciaries occasionally openly defy the rulings of the self-appointed European supreme court. The Ajos saga is perhaps the most obvious and recent example here but there are others. What is notable about these instances of defiance is that they were perpetrated by courts from European legal systems with stellar reputations, so authoritarian motivations can be safely ruled out. Cases of defiance anecdotally demonstrate that judicial actors, just as political actors, do not take kindly to being marginalized – even if they could not admit it, they seek to preserve their power where possible, and the purposive ambiguity of the EU Treaties on the point of supremacy certainly puts national courts in a stronger position vis-à-vis the CJEU. Even where outright defiance does not occur, national courts might intentionally diverge from CJEU case law. We know very little about the extent to which this happens, as scholarship is lopsidedly focused on CJEU judgments, despite implementation of EU law and preliminary rulings taking place at national level. It is clear, however, that there are significant “black holes” in the EU when it comes to the application of EU law.

Supremacy of a higher legal order over a lower one – EU over national law – is a functional necessity for a given polity to operate in a relatively uniform and equal manner. But even if taken as necessary in a certain context, uniformity and equality are normative objectives, the opposites to some degree of normative pluralism. A hierarchy of laws and courts might underlie EU integration for it to be functional – thus Costa – but the absence of an explicit commitment to it on the part of all Member States is on the one hand an indication of their normative standpoint and, on the other, it leaves spaces for legal pluralism to operate as a matter of fact. Does this make it more difficult for the EU to ensure that all Member States abide by its fundamental values? Probably. We might deem this state of affairs undesirable – it ought not exist – but it does, and it has less to do with constitutional pluralists, even the normative ones, and more with the designers of the EU.

References

References
1 Critical theorists and many psychologists might object to the very possibility of distinguishing the “is” from the “ought” – what is out there in the world and what should be. I maintain that this distinction is rationally possible even if in many situations our perception of “is” is tainted by our normative standpoint (the “should”).

SUGGESTED CITATION  Ovádek, Michal: Constitutional Pluralism between Normative Theory and Empirical Fact, VerfBlog, 2018/10/23, https://verfassungsblog.de/constitutional-pluralism-between-normative-theory-and-empirical-fact/, DOI: 10.17176/20181026-145319-0.

17 Comments

  1. Dr. Marcin Michalski Di 23 Okt 2018 at 21:45 - Reply

    The term ‚autocracy‘ seems to be quite often abused in respect to polish and hungarian governments. Are Victor Orban or Jaroslaw Kaczynski, with their democratic legitimation the aucrats compared to, say, hereditary king od Spain, Juan Carlos? Or compared to any european party leader? Or are the ‚autocrats‘ political leadres we just don’t like?

    • Maximilian Steinbeis Di 23 Okt 2018 at 21:52 - Reply

      These are some of the easiest-to-answer-est questions I have seen in a long time, Dr. Marcin! Congrats for that. I think you’ll manage to solve the riddle for yourself if you put your mind to it for a minute. Here’s another one for you, maybe a bit more of a brainteaser: what, exactly, is the democratic legitimation of Jaroslaw Kaczynski?

      • Dr. Marcin Michalski Di 23 Okt 2018 at 23:52 - Reply

        Dear Maximilian, democratic legitimation of Jaroslaw Kaczynski is quite similar to that of Dr. Angela Merkel: he is Sejm-deputy, elected in his constituency, and leader of the political party, elected in party-internal democratic procedure. So, where is the difference?

        • Maximilian Steinbeis Di 23 Okt 2018 at 23:55 - Reply

          Hm. Where is the difference? It’s not the academic title, for sure. Come on, try a little harder.

          • Dr. Marcin Michalski Mi 24 Okt 2018 at 00:10

            Well, I am asking you, so be kind and provide convincing answer, if you can. You already claimed it is an easy brain-teaser. You seem to suggest the polish leader is an autocrat, while the german one is not. So what’s the difference?

          • Maximilian Steinbeis Mi 24 Okt 2018 at 00:20

            One has been elected by the representatives of the people to lead the country. The other hasn’t. I flat-out refuse to believe that you didn’t know the answer to that yourself, and I apologize to Michal for letting this ridiculous thread of comments happen beneath his wonderful article. But you have been trolling VB for so long now, I just couldn’t take it any more.

          • Dr. Marcin Michalski Mi 24 Okt 2018 at 00:44

            Dear Maximilian. I apologize for few inapropriate comments I made on this blog. But this time I am just asking the very simple question, and I didn’t become convincing answer. I am afraid you and Michal just don’t have it. And it seems you both don’t have cojones to admit it.

          • Maximilian Steinbeis Mi 24 Okt 2018 at 09:25

            Please, Marcin, don’t be vulgar. You seem to have overread what I wrote in my previous comment: One has been elected by the representatives of the people to lead the country, the other hasn’t. That answers your question about the difference between both, doesn’t it?

          • Dr. Marcin Michalski Mi 24 Okt 2018 at 10:41

            Dear Maximilian, I would be happy to agree with you, if you provide convincing arguments. I am affraid I cannot accept the raw claim. Both Merkel and Kaczynski are elected deputies, and both are elected winning party leaders, and hence both are country leaders with democratic legitimation. Both are doing what they are expected to do, and will dissapear sometime when the voters are unhappy with them. If you do not agree with obvious facts, please provide convincing arguments to prove contrary. The main difference between the both is that Merkel is prime minister, while Kaczynski is rear-seat strategist. Does it make him autocrat? If you believe that, what about Orban?

          • Maximilian Steinbeis Mi 24 Okt 2018 at 10:48

            So you accept the difference: Merkel has been elected leader of the country by the representatives of the German people, Kaczynski by his own party. You seem to find that difference doesn’t matter. Why?

          • Dr. Marcin Michalski Mi 24 Okt 2018 at 16:42

            I do, and I don’t (jain). Voters of CDU vote for Merkel as its leader in parliamentary elections because they are convinced by her leadership quality and despite she became party leader as result of party-intern procedure. Exactly the same applies for Kaczynski. Note that none of them became was elected directly (with exception of being ordinary deputy). Additionally, Merkel was elected indirectly to the office of prime minister. However, as german government is formed in coalition, it is quite obvious that at least some SPD deputies voted for Merkel against the will of their own supporters. Leaving some differencies aside, both Merkel and Kaczynski have sufficiently strong democratic legitimation to lead their countries, and if one of them is an autocrat, the other is too to the same extent. Also, in polish executive, the power of prime minister is balanced by quite strong office of country’s president, who is elected directly. So, who is autocrat? Currently, due to the ZDF Politbarometer poll, 56% citizens don’t want Merkel to stay in office, while 40% want. Of course, the poll is not the sufficient reason, but will she go once she became really inpopular?

  2. Michal Ovadek Di 23 Okt 2018 at 23:42 - Reply

    I can assure you that there are plenty of governments I dislike. The autocratic label is really reserved for those which have mounted an all-out offensive on independent institutions safeguarding checks and balances in a democracy. There are other aspirants, of course, but Hungary and Poland are edging this race at the moment in the EU. I also have no particular interest in the substantive policies promoted by these governments, although I doubt that they are worth sacrificing a democracy for.

    • Dr. Marcin Michalski Mi 24 Okt 2018 at 00:02 - Reply

      Dear Michal, let’s take any definition, for example from wikipedia: ‚An autocracy is a system of government in which supreme power is concentrated in the hands of one person, whose decisions are subject to neither external legal restraints nor regularized mechanisms of popular control‘. Do you suggest Victor Orban will remain in his office provided his party loses elections sometime?

  3. Gaullist Mi 24 Okt 2018 at 15:17 - Reply

    Thank you for sharing these stimulating thoughts. The disappearance of the principle of supremacy in the Lisbon treaty is indeed a distressing symptom of an integration process, stained with a dogma of moving on at any cost. Putting up constitutional pluralism as a normative or empirical defence line against European influence on national affairs is thus a self-evident narrative for politicians of all colours. This is just one of the many reasons why the current design of European integration offers no incentive for politicians, backed by a national electorate, to exchange constitutional pluralism as a normative or empirical line of reasoning for unambigous commitments to a hierarchial European legal order. For this to happen, I guess, the EU dependends on a genuine constitutional moment.

  4. Gabor Halmai So 28 Okt 2018 at 07:19 - Reply

    It is a pity that the conversation was deflected from the convincing argument of the post on empirical pluralism in the EU. But since it happened, let me say to Mr. Michalski that the democratic election does not always prevent to-be autocrats to become real ones (see Adolf Hitler). And whether Viktor Orbán would remain in office dispite losing elections is not just a rhetoric question. Both in 2014 and 2018 he rigged the elections in order to keep 2/3 majority. Next time he may do it for keeping majority, and who knows what he would do if he still loses.

    • Dr. Marcin Michalski So 28 Okt 2018 at 18:36 - Reply

      Dear Gabor,
      I agree with you being suspicious about country leaders who are long in office and could someday become autocrats. However, I would be most suspicious about Dr. Merkel, knowing Germany’s history.

  5. Gabor Halmai Mo 29 Okt 2018 at 10:46 - Reply

    I am not suspicious about Orbán, I know that he dismantled democracy in Hungary altogether. Chancellor Merkel, who just resigned as the head of her party due to a bad election result, never did anything similar. You may not like her, but she is a democrat, while Orbán, and Kaczinsky for that matter are autocrats.

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