GUEST BLOGGER: MIGUEL AZPITARTE, ON CONSTITUTIONAL CONFLICT AND LEGAL PLURALISM IN A POST-CONSTITUTIONAL UNION

The present title provides enough elements to help us understand what could be the proper function of Constitutional Courts in their relationship with European Law. I will structure my analysis in three separate sections, following the title of this post.

Constitutional conflict

1. Our first step must be to clarify what do we mean when we talk about “constitutional conflict”. In my opinion, when we mention constitutional conflict in European law, we are referring to the hypothesis of a conflict between a national Constitution and the Treaties, or in a wider perspective, a conflict between a national Constitution and European law in general. And if a constitutional conflict brings a national Constitution into the arena, there is no doubt that national Constitutional Courts will have to play a role.

2. But the relevance of Constitutional Courts should not make us think that a constitutional conflict is only a conflict between courts. A constitutional conflict is not only a problem about who has the final say in a judicial case. A constitutional conflict, like every conflict of laws, has a deeper meaning. Whenever a case must be decided choosing between two competing norms, we are solving a singular case, but we are also deciding on two powers: the power that incepted the Constitution, and the one that creates European law. Constitutional conflict is a technical way of expressing a conflict among autonomous powers. And if we speak of power, the scene cannot be reduced to Constitutional Courts. They are, of course, leading actors, but the scene is a much wider one. In understanding constitutional conflicts, we have to rely upon Courts, but also on lawmakers, and not least, citizens.


Legal pluralism

1. A wide definition of constitutional conflicts will enable us to grasp the following concept of legal pluralism: various constitutional voices express their constitutional narrative in the open society of constitutional law. Legal pluralism provides, therefore, richness to constitutional thought.

But pluralism has its limits in the internal rationality of law. We use law to solve problems. It is positive if plurality appears as an element of the law, but, at some point, the institutional framework must put an end to a concrete conflict and decide on a particular controversy.

2. Therefore, the fundamental issue is how to structure legal pluralism in order to solve a constitutional conflict. The problems under discussion here appear, thus, in intimate relation: what is the proper role of Constitutional Courts? In order to solve this query, we need a political and constitutional theory. A constitutional theory that explains the idea of pluralism; the need for pragmatism in law within a pluralist framework; and the allocation of a proper position for the Constitutional Court in the search for a balance between pluralism and pragmatism.

3. In mi opinion, the solution should come by exploring the possibilities of what I will call legal federalism. I have chosen this term for three reasons. First, the concept of federalism recalls the idea of pluralism and order as a possible conjunction. Secondly, because it refers us to other models where the pluralistic character of constitutional law is a routine, where constitutional scrutiny is not constructed under dramatic hypothesis, as occurs, for example, in the United States or Germany. And thirdly, the adjective “legal” allow us to put away the fears purported by the enemies of political federalism. [But, anyway, if the word federalism must be eradicated, I am happy to accept other concepts such as constitutional structuralism or constitutional multiplicity, that put on the table the idea of pluralism and order as a possible conjunction].

4. The search for a political philosophy is rather simple: the increase of power through democratic association. Pluralism (political, cultural and national pluralism) is arranged through democracy, resulting in an increase of power.

5. And what are the consequences of this political philosophy in the definition of constitutional control? The main results appear to me rather straightforward: Constitutional Courts must guarantee the integrity of the Constitution vis-a-vis national legislation.

This simple and general consequence provides us with additional practical consequences.

a) The Court must control draft Treaties only if there is a plain textual contradiction, avoiding the use of general principles.

b) The Court must concentrate in the application and implementation of European law. In this scenario the conflict is mature and ready to be understood in its whole dimension.

c) In this context, the Court must make an effort to scrutinize the national dimension of the conflict (the national law, the national application), and refuse to any control that has European law as its main object.

d) If national law is unconstitutional because of European law, then the Court must order a preliminary reference before the European Court of Justice, prior to its decision.

e) If after all these steps the Court believes that European law contradicts national Constitutional law, the Court must make a prospective ruling, setting the limits of the decision and opening the possibilities for a solution.


A post-constitutional Union

1. I have tried to point out that the proper position of Constitutional Courts needs a political and constitutional theory that explains such position. It must be so, because the role of a Constitutional Court in its national dimension is built on a very precise constitutional theory that it can not be extended in its European dimension without a critical revision.

2. But the third element of this post, the “post-constitutional Union”, wonders about the plausibility of a constitutional reflection. If the Constitutional Treaty is dead, for what reasons do we keep doing a constitutional analysis? Finally, we need to ask ourselves about the need for a constitutional discourse in an institutional space without a Constitution.

I believe there are strong reasons to keep thinking in constitutional terms.

a) National Constitutions and their relation with European law reserve spaces for constitutional discourse, even if these narratives can become introspective.

b) The Constitutional treaty did not open the constitutional debate, and would not have closed it. The existence of a norm which we can call a “Constitution” has indeed a strong effect in our political imagery and helps to put the constitutional narrative in the center of the debate. With a Constitutional text there is a very small space for competitive narratives: the constitutional paradigm closes the political scenario. But a Constitutional text is not the essential condition to build a constitutional narrative. Of course, this narrative is weaker without a Constitutional text –it has to compete with other narratives-, but it is a necessary one if we must arrange power with the democratic principle as a starting point.

c) Therefore, a constitutional narrative, the organization of power originating from the democratic principle, must be in the battlefield of a post-constitutional Union. The present scenario is a political desert in which I do not see an ideological alternative to a constitutional discourse. The time of silence must be thus filled with democratic discourse.