Radical Constitutional Pluralism in Europe

This book explains the challenge and importance of constitutional pluralism, showing its theoretical and practical relevance, and considering how the existing scholarship is unsatisfactory. It explores how legal practitioners and theorists have faced the challenge of a society living under two constitutions at the same time.

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.

Autorentext

Orlando Scarcello is Postdoctoral Fellow in Law at the University of Leuven, Belgium.

Inhalt

Acknowledgements

1. Introduction: The Riddle of Constitutional Pluralism

2. Constitutional Pluralism in Theory and Practice

3. Revisiting Radical Pluralism: The Jurisprudence of Neil MacCormick and Beyond

4. Constitutional Disagreement: Pluralism in Composite and Unitary Legal Systems

5. Interpretive Disputes and Ultra Vires Judgements in European Pluralism

6. Epilogue: The Limits of Jurisprudence

Bibliography

Index