Constitutional Pluralism's Unspoken Normative Core

Abstract

This article argues that discourses of constitutional pluralism contain a strong normative core which is made up of a series of largely unacknowledged implicit claims about legitimacy and community. This argument is illustrated by reference to various constitutional pluralist responses to the Hungarian Constitutional Court's ruling concerning the protection of constitutional identity in the context of EU asylum and refugee protection law and policy, demonstrating that whether this decision falls ‘inside’ or ‘outside’ constitutional pluralist tolerance depends on how the observer defines the minimum amount of shared substantive or procedural content that is fundamental to the EU order.

The concept of constitutional pluralism as the fundamental basis for the development of the European Union legal order

“…The concept of constitutional pluralism is reflected in the works of scholars such as Lawrence -considers the concept of constitutional pluralism as a kind of discussion technique that solves the relationship between the legal orders (Lawrence, 2019). N.…”

“…In this context, we share the point of view of Jessica C. Lawrence according to which, "constitutional pluralism marks certain conflicts as legitimate despite their lack of a single source of 'legality'. It does this by shifting the legitimating function to some other norm-whether cosmopolitan values, fundamental rights, shared conflict resolution principles, an alternative constitutional order, or something else" (Lawrence, 2019).…”

“…Lawrence who examining the normative content of constitutional pluralism in the EU concludes that "its normative content is far more determinate than it appears: it is not only a commitment to an 'ever closer union' or 'democratic values' or 'respect for diversity' or any other abstract concept that makes behavior an acceptable instance of constitutional pluralism -it is also necessary to be a 'normal', 'well-ordered' (Western) European state that acts within acceptable bounds. These values may be historically, geographically, and politically contingent, may shift over time, and may not be applied with equal fervor to all actors in the system, but they are most certainly present" (Lawrence, 2019).…”

Constructive Versus Destructive Conflict: Taking Stock of the Recent Constitutional Jurisprudence in the EU

“…9 In this respect, the position taken in this article will be openly normative, by determining the limits to which the auto-correct function of constitutional pluralism can stretch; and beyond which we are conceptually falling into what Jessica Lawrence calls the 'descriptive fallacy' of constitutional pluralism. 10 The thick normative core of constitutional pluralism distinguishes constructive from destructive conflict. As I hope to show, convergent standards on EU and national levels of the 'constitutional' will still allow for 'pluralism', both substantively and institutionally.…”

Law and virtue in a post-sovereign “Commonwealth:” Neil MacCormick and the political theory of constitutional pluralism

“…Constitutional pluralism—and with it, the idea of post sovereignty—has become one of the legitimate legal theories of the EU, and beyond, of the contemporary international order. It thus matters to explore what it exactly implies normatively (see also in a different perspective Lawrence, 2019).…”