In this conversation with RevDem editor Kasia Krzyżanowska, Orlando Scarcello discusses his newest book Radical Constitutional Pluralism in Europe (Routledge 2022). He elaborates on the descriptive nature of the theory of constitutional pluralism, stresses the inevitability of constitutional conflicts in the EU, and ponders on the political side of these conflicts.
Orlando Scarcello —a postdoctoral fellow at Institute for European Law, KU Leuven. His research fields are EU law and comparative constitutional law.
Kasia Krzyżanowska: What is the concept of radical constitutional pluralism? What are the alternative versions of conceptualizing the relationship between the EU legal order and domestic legal orders? Finally, why do you think that radical pluralism is the best framework for understanding the experience of living under two constitutions?
Orlando Scarcello: Here we have a bit of a conundrum. The member states of the European Union clearly have their own constitutions, and we know that they are internally supreme. We also know, on the other hand, that the EU has a constitution of its own, made of treaties, of some unwritten general principles, of the Charter of Fundamental Rights. EU law claims to have supremacy over the laws of the member states. Now, the question is of course: how is this duality possible? Or, how is it possible to have a truthful constitution?
In the specific academic debate on the topic there are two main groups. On one hand, there are those who deny that there can ever be more than one constitution, for the civic constitution is a sort of consecrated document and the ultimate codification of popular political loyalty, and that can only be unitary. We can think of a document in which citizens – at least the most politically aware citizens – identify with. On the other hand, there are those who think that constitutionalism, historically, is mostly a political theory of a liberal kind, based on the recognition and guarantees of rights and the separation of powers. This can be performed by different levels of government simultaneously; it doesn’t have to be unitary.
This latter group of scholars is made of constitutional pluralists. In many cases, constitutional pluralists who were commenting on the relations between EU constitutionalism and national constitutions have taken an openly normative position, and embraced as such a division of “constitutionalisms” as a sort of separation of powers beyond the state. They also often work on how to prevent conflicts between the two constitutions, or at least how to distinguish between justified and unjustified contestations of EU law. Radical pluralism – which was for the first time conceptualized by Neil MacCormick, a Scottish scholar, exactly 30 years ago – is a form of pluralism, but it’s a form of pluralism that doesn’t take the normative stance per se. It doesn’t claim this dual constitutionalism to be either good or bad, but simply a legal scenario to be understood and explained. Similarly, it does not attempt to adjudicate which conflicts are justified or unjustified. We might say that in jurisprudential terms it is a sort of positivist theory that sees the law, including constitutional pluralism, as a set of social facts to be explained.
It also tries to underline – and perhaps this is the most important feature of constitutional pluralism – that constitutional conflicts cannot be avoided. They are inevitable; they are inevitable even within member states. They are even more frequent and inevitable in federal or quasi-federal contexts, like that of the European Union. So briefly, I would say that
radical pluralism is a theory that does not deny the coexistence of multiple constitutions in contemporary Europe. It attempts to explain this coexistence and it stresses the inevitability of such conflicts.
The authority of the state constitution is quite obvious: it is an emancipatory symbolic document that establishes and orders the state. But the EU’s autonomy and authority are much more contested but historical concepts, which are also presupposed by the idea of radical constitutional pluralism. What should we do with actors that do not accept the EU as a constitutional actor? Can this be truly a social fact if the constitutional nature of the EU is not commonly accepted, despite all the efforts of the EU scholarship and some constitutional courts?
For sure, the constitutional nature of the EU is much more contested than that of the state. There is no doubt on this point. However, I base my analysis on the idea and the assumption that there is much more material today to take EU constitutionalism seriously. There are several factors that I think back up this this view. First, as you were mentioning,
there’s a series of constitutional courts, besides scholars, that have implicitly or explicitly recognized the constitutional nature of part of EU law.
In the book, for instance, I quote a pretty explicit statement by the Italian Constitutional Court talking about the constitutional stamp of the Charter of Fundamental Rights, which I think is emblematic of this attitude. Other constitutional courts have taken a maybe less explicit but still quite close attitude. For instance, when using some Charter rights on par with their own constitutional rights. This is a quite significant recognition of the constitutional value of at least part of EU law.
Then, besides the Charter, there’s another thing that wasn’t true 30 years ago when MacCormick for the first time had envisioned radical pluralism, but is true today. We have a quite large body of legislation coming from the EU pertaining materially to constitutional subjects: regulation of data protection (which is for the vast majority an EU-regulated area), equality law, or rights in criminal proceedings. Now, these are all topics which are typically connected to materially constitutional areas and they are now, to some extent at least, regulated at the EU level.
The third group of facts that we should take into account to understand why the notion of EU constitutionalism shall be taken seriously is what happens when the member states’ commitment to constitutionalism waivers, or at least weakens. We have, to a certain extent, seen that happening during these years in the context of the rule of law crisis. We have seen a growing compensatory function of EU law instead of the member states’ in replacing this wavering commitment of the member states. For instance, that various references from Polish and Hungarian judges to the Court of Justice have been sent to ultimately obtain a declaration that some internal reforms were not in line with EU law is, I think, an implicit recognition of this compensatory function that of the EU constitution. Today, there are a number of national actors recognizing EU constitutionalism in some form or another. Certainly, there are many more than they used to be 30 years ago. It is at this point necessary to take seriously the idea that there is some form of EU constitution.
All that said, it clearly is a fragile creature. Much more fragile than it is at the state level.
It cannot be ruled out that at some point in the future, those who do not recognize, as you mentioned, the idea of an EU constitution will be more numerous or more powerful than they are today, and that the entire body of EU constitutionalism will be erased altogether.
But this just proves, in my view, that the constitutional nature of the institutions of a polity is not a datum; it’s not something set once and for all. It can change, and it depends on the historical conditions and the political equilibria that are created from time to time.
For sure, the influence on the perception of EU constitutionalism is also dependent on political actors and how the politicians create the climate around constitutionalism. It is no wonder that among the ECJ, these were political figures that created this constitutional discourse on the European Union. What is the logic of liberal constitutionalism that the EU sustains? You also describe it or discuss it briefly in your book. Could you elaborate what is meant by this liberal constitutionalism?
I will speak briefly on this point, because I think I have touched upon it a little bit already before. The liberal logic of EU constitutionalism is, I believe, the only logic that might sustain a weak form of constitutionalism, or better, a form of constitutionalism like the EU one, with relatively weak democratic credentials. It is a form of constitutionalism based on the recognition of a catalogue of rights, and then the creation of a system of divided powers to implement them. It is, as I mentioned before, the Charter, the legislation that implements topics that are materially constitutional, and then adjudication on such instruments.
Now, this is clearly a relatively thin form of constitutionalism. On the other hand, it’s also a quite ancient one. It’s the form of constitutionalism, it’s the definition of constitutionalism, that we find back in the late eighteenth-century revolutions. Moreover, let us not forget that a certain indirect legitimacy to this layer of EU rights derived from the fact that, often, EU rights have been drawn from the constitutional traditions common to the member states and that, on the other hand, all these instruments have been directly ratified by the member states. In any case, there is always involvement in the legal process at EU level of the member states.
A certain indirect democratic legitimacy derives from this shared nature of EU rights, from the involvement of the states in the ratification of the Treaties, and the legislative process. It remains, though, a mostly liberal rather democratic form of constitutionalism.
What lessons can we learn from antebellum American constitutionalism for imagining the current state of the EU constitutional system, especially when it comes to solving the conflicts regarding legal authority and the ultra vires cases? You state that one of the crucial structural differences between those two ideas is the fact that, in the antebellum US, the guardians of the constitutional compact were elected representatives, whereas for today’s EU constitutionalism the guardian is the judiciary. How does this difference affect the European Union of states?
Here we need a little bit of context. The cases of ultra vires in the antebellum United States happened at a time in which the power of the judiciary as an arbiter of legal, and constitutional conflicts in particular, was not well established. It was relatively shaky. It was the dawn of judicial review. So, at that time, it was inevitable or more natural that elected representatives would state their views on the division of powers in the federal system. In today’s Europe, we are much more used to the idea that courts are the guardians of the constitution and that they should exercise a strong review when it comes to controversies on the division of powers within member states, and then between the European Union and the member states.
Now, in this sense, what follows is a partial depoliticization of the debate. We have deeply political issues treated and brought to the public forum by judges, technically a nonpolitical actor or a less political actor. We can think about, for instance, the PSPP/Weiss saga, in which the German Constitutional Court expressed its worry for the interests of savers and whether they have been adequately taken into consideration when implementing the program of the ECB, which was a clearly political issue.
That said, I also state in the book that if we look carefully at the ultra vires cases in Europe, we find that political institutions systematically played a role in addressing these conflicts as well. If we look at the Czech Landtová saga, the Danish Ajos case and again, the German PSPP/Weiss case, what we find is that the political branches do not differ from their American counterparts in the antebellum United States. The political branches – parliaments and executives – intervened to make sure that conflict would not escalate further and that a political composition of conflict was found. In a sense, even in the Polish K 3/21 case, the last ultra vires case described in the book, we find the deep involvement of political institutions. This ultra vires conflict was, after all, called for by the government. I think that this role of political actors is at times overlooked by lawyers when studying questions of ultra vires, and I tried to underline the systematic role of political actors in all ultra vires cases in Europe in the book.
You mentioned already those conflicts and ultra vires reviews and decisions taken by the domestic courts. On the basis of the analysis of selected national case law, you distinguish between physiological conflict and constitutional pathology. What is the difference between the two, and when does the conflict indeed threaten the constitutional compact of the EU?
I distinguish between the two in a descriptive rather than normative sense.
Physiological conflicts are all ordinary disagreements on the interpretation and application of the constitution.
They happen in the states too, and they depend on the open-textured structure of many constitutional norms, as well as of course, on the different interests of the involved actors. In federal or quasi-federal systems like the EU or the antebellum United States, they tend to happen more frequently.
Pathological conflicts are those constitutional conflicts in which disagreements have become insurmountable for political reasons, and they threaten the stability of the system. Very often these pathological conflicts concern the fundamental political questions of the day.
Now, in terms of structure, this is what I would like to underline: these conflicts are similar to any other legal dispute. They derive from the open texture of legal materials, the lack of clarity on who should be in charge of interpreting them at times, or on how to interpret them. It’s the political saliency that makes pathological conflicts harder, or even impossible, to solve.
We can take cases from the American context. In the book I recall, among the others, the Martin vs Hunter’s Lessee case of 1816, in which you have the Appellate Court of Virginia refusing to recognize the supremacy of the Supreme Court in a case involving a seizure of former British loyalists’ property. This was an ultra vires case, but it’s not comparable in intensity to, for instance, the South Carolina notification crisis that happened around 15 years later in 1828-1832, which was motivated by the disagreement between the federal government and the southern states on trade tariffs. The former question – seizing of British loyalist property – was a more mundane dispute, while the other was one of the burning issues of the day, and in the end, one of the causes of the Civil War, so the breakdown of law in the antebellum US.
Similarly, if we take the European examples – Landtová, Ajos, or even PSPP/Weiss case – I don’t think they are really as dangerous as the K 3/21 case, because of a series of factors showing the political context. The courts in the Czech Republic, Denmark, and Germany were for sure independent courts. They attempted dialogue in some way or another with the Court of Justice, showing a certain open attitude. The judgments were always motivated fast, while in the case of the Polish judgment, we had to wait more than one year for the motivation of the judgment. I myself wrote the book before that was published. The behavior of national governments made the first cases more likely to be solved because of the attitude of political actors.
one cannot draw the line of what will be a pathological conflict in the abstract. It’s the political context that is decisive when legal characteristics of conflicts are, I fear, more similar than we like to admit as lawyers.
This is a very sober interpretation of those conflicts. Let us talk about the framing of some of the conflicts that you analyze in the book. When you describe the Polish case in which the Constitutional Tribunal challenged the primacy of EU law, you frame it in the historical context of grievances toward the past, especially the Soviet rule, and apply the identitarian narrative of the return to Europe. However, the Czech case of Landtová from 2012 is not described in these terms, but rather as a result of an unfortunate combination of factors. Do you think that such an essentialist framing hinders the solutions (if this approach is deeply culturally entrenched, which is contestable, then are there no remedies to the problem)?
Labels like “return to Europe”, or what was called the “legal resentment” towards any form of external political control, are used in the literature to describe what I think are two contradictory tendencies in the process of adaptation of several Central and Eastern European states to the constitutional system more typical of the West of Europe. On one hand, you have the clear desire to realign with the rest of the continent. On the other hand, you deserve doing that in full autonomy and by preserving one’s own features. I believe that both these narratives probably describe part of the historical process of adaptation.
Now, of course, the latter makes conflicts much more likely and difficult to solve, because it emphasizes the need to preserve at any cost the identity of each country, even at the price of supranational cooperation. But the same fact that two conflicting narratives about what happened after 1989 coexist – and they both capture part of the truth – I think that it shows that there is no historical inevitability in any future or present outcome of disputes between these countries (like Poland, for instance) and the European Union. If the sense of diversity towards the rest of the European Union is indeed culturally entrenched – and one may ask for which country it is not, by the way – the same is true of this desire to return to Europe.
I think it’s important to realize that such grievances towards the past are part of what we need to know to understand the relationship between Central and East European States and the European Union. This is something that I address mostly to people like me coming from Western Europe. When we often don’t know or don’t know enough, it’s important to recall that. But on the other hand, grievances are part of a more complex relationship, which includes countervailing tendencies as well. There is no reason to answer your question why the identitarian narrative alone shall dictate the outcome of future conflicts.
What would be your suggestion to ease the tensions between the national apex courts and the European Court of Justice? When discussing the Czech and Danish conflict with the ECJ you suggest that one of the reasons for the declaration of the ultra vires decision was the denial of any hearing for the Czech constitutional court in Luxembourg (and, implicitly, the personal disposition of the judges). This is a super important insight, which goes beyond the legalistic perception of the conflict. What would your suggestion be to include these kinds of background stories into remedies for the conflict?
I fear that I will have less to say in this specific issue for the reason that you mentioned at the beginning of your question – that the idea of radical purism is normatively inert, as I stated in this interview as well. The theory of radical pluralism simply tries to underline that conflicts are structural and constitutional law in general and encompass constitutions in particular. All that said, probably an increased use of the preliminary ruling mechanism is the most appropriate answer. Indeed, to a certain extent, it’s something that is happening already.
We know that Supreme Courts, Constitutional Courts, and apex courts in general are using it more often today than they used to in the past. This is not guarantee of a peaceful solution, of course. In the book, for instance, there are cases in which it did actually succeed in fostering some compromise, like the Taricco saga, but then you also find others, like again the PSPP case, in which it produced very little results. It’s probably the most likely tool to be used to solve conflicts or find judicial compromises, but it’s not a silver bullet.
In the specific Landtova case, I think that there was a certain misunderstanding concerning the way in which it was possible to approach the Court of Justice. But in these recent years, cooperation and information circulating between courts is surely growing. Therefore, I think that this kind of, let’s say ‘best practice’, of using the preliminary reference is something that is happening anyhow in these years. If that is the most likely mechanism for conflict solution, it’s gaining ground. Once more, I would like to state that this does not follow from the theory per se.
What’s your opinion on the proposal made by Joseph Weiler and Daniel Sarmiento to establish a new mixed Chamber to the ECJ that would comprise of the judges of the different national courts? By the way, this is the suggestion that was already proposed by the one German constitutional judge, Udo Di Fabio, already in 2001. Does it sound exciting for you?
I don’t know if it sounds exciting. It sounds like a mechanism that would alter deeply the equilibrium that exists between the various actors – constitutional courts of the member states and the Court of Justice of the European Union. It might be a mechanism for conflict solution, of course.
One thing that I underlined, though, in the book is that even in systems which have a unitary body solving constitutional conflicts like in the case of the United States, this doesn’t solve constitutional conflicts altogether. In the case of the US, I look at Daniel Halberstam’s writings concerning the question of how the conflicts moved from conflicts between the two levels of government to conflicts between the various branches of government at some point: – conflicts on who is in charge of interpreting the constitution whether the Supreme Court, or at times, the executive or the Congress.
So, even if we had a similar unitary body in the EU, I don’t think it would be a silver bullet. Once more, it’s a matter of accepting the structural open texture of the nature of law, and the following inevitability of conflicts.
As you mentioned, probably the theory of radical constitutional pluralism will not provide an answer to my last question. If you endorse the vision of radical pluralism that accepts that there are no legal remedies to resolve conflicts over the final authority, but only political ones, what would be your suggestion to resolve the deadlock to which the Article 7 procedure has arrived for Hungary and Poland?
I believe that the theory is normatively inert; it does not entail the suggestions on this point. However, on this specific question of the violations of values stipulated in Article 2 TEU by Hungary and Poland, I believe that in any case, the current events are showing an example of political solution, or at least attempted political solution, to this disagreement.
How so? Well, Article 7 TEU of course is at a dead end. Still, alternative mechanisms are being creatively built: the approval of the conditionality regulation and the common provisions regulations are the result of a political process in Brussels. They are not, on the other hand, the result of some creative interpretation of legal principles existing in the Treaties. They give to the Commission and to the Council a certain financial leverage over Hungary and Poland in some way. That is the basis for some degree of bargain and negotiation, perhaps, possibly a slowdown in the internal rule of law breakdown. Maybe it would be enough, maybe not. I don’t predict, of course, any kind of outcome for the future. The point is that ultimately mechanisms for conflict resolution are political agreements rather than clever interpretations of the Treaty norms by lawyers. Radical pluralism does exactly that – it tries to stress the limits of law and the importance of politics.
In collaboration with Hannah Vos.