Populism and the crisis of constitutional pluralism

Scholtes, J. (2022) Populism and the crisis of constitutional pluralism. In: Krygier, M., Czarnota, A. and Sadurski, W. (eds.) Anti-Constitutional Populism. Series: Cambridge studies in law and society. Cambridge University Press: Cambridge, pp. 401-433. ISBN 9781316516164 (doi: 10.1017/9781009031103.016)

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Abstract

At least for the last two decades, the idea of constitutional pluralism has been a central theme of European constitutional scholarship. Constitutional pluralism imagines the European legal space as a ‘heterarchy’, consisting of multiple autonomous and overlapping constitutional sites, each claiming ultimate authority over their respective domain and yet each respecting and accommodating the other. However, while the theory has always had its critics, especially in recent years constitutional pluralism seems to have gone from à la mode to enfant terrible. Especially with the emergence of autocratic governments in Hungary and Poland and the increased space of tension this has opened, constitutional pluralism is being increasingly decried as ‘unsustainable’, ‘inherently dangerous’, ‘prone to abuse’.1 Critics point to the ways in which illiberals and autocrats in Hungary and Poland have seized upon the idea of constitutional pluralism in order to justify non-compliance with EU law and vindicate their authoritarian constitutional projects against outside criticism. The criticism has culminated in a recently published open letter signed by 27 EU legal scholars in the aftermath of a much-discussed judgment of the German Constitutional Court, calling out what they perceive as the inherent deficiencies of constitutional pluralism and declaring that ‘national courts cannot override CJEU judgments’.2

Item Type:Book Sections
Status:Published
Glasgow Author(s) Enlighten ID:Scholtes, Dr Julian
Authors: Scholtes, J.
College/School:College of Social Sciences > School of Law
Publisher:Cambridge University Press
ISBN:9781316516164
Published Online:24 March 2022

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