From Constitutional Pluralism to a Pluralistic Constitution? Constitutional synthesis as a MacCormickian constitutional theory of European integration
This paper aims at putting forward the key elements of a constitutional theory of European law on the basis of D. Neil MacCormick’s theory of European constitutional pluralism.
Agustín José Menéndez
This paper aims at putting forward the key elements of a constitutional theory of European law on the basis of D. Neil MacCormick’s theory of European constitutional pluralism. Firstly, I consider how the institutional theory of law fleshed out by MacCormick creates the theoretical space within which it is be possible to make sense of legal and political phenomena below, above and beyond the nation-state, and particularly, of the EU.
Secondly, I ponder on how this affects standard constitutional theories of Community law. Because standard theoretical re-constructions of Community law are premised on the close relationship between law and nation-state, they turn to be incapable of providing a satisfactory and simultaneous answer to three fundamental questions, namely the genesis of EU law, the primacy of EU law and the endurance and growth of EU law.
Thirdly, I consider the many achievements of MacCormick’s European constitutional pluralism, in particular, the thesis that Community law can be approached from at least two differentiated, but equally authoritative, standpoints (the differentiated but equal standpoints thesis) and that the stability of the European legal order is rooted on non-legal bases that reveal the transformation of sovereignty in contemporary Europe (the stability beyond sovereignty thesis). But I also consider the turn that the Scottish philosopher made towards a moderate pluralism under international, a shift that is decisive in order to understand the problématique of Community law and the questions that MacCormick was struggling to solve.
Fourthly, I sketch the theory of constitutional synthesis, a constitutional theory of European integration which aims to apply the key insights of MacCormick’s European constitutional pluralism to solving the problems which were left open by the theory of the Edinburgh professor. It emphasises the singularity of the European path towards a democratic constitution, the theory of constitutional synthesis combines sensitivity towards the fundamental pluralistic traits of Union law with a commitment towards the idea of constitutional law as a monistic means of social integration.
This paper was first published as RECON Online Working Paper 2011/02