EGO402: EU Law and European System of Human Rights Protection
Sandra Zwick
13th week, 09.12.19
1
Constitutional pluralism: An oxymoron by M. Loughlin
In his article Loughlin elaborates on the concept of constitutional pluralism (CP)
in relation to the European Union and points out the critical aspects to it making this
concept oxymoronic. He, therefore, focuses on the works of CP’s advocates and highly
criticizes the foundations and chosen approach of this specific concept.
Loughlin’s statement in terms of ‘state sovereignty’, that countries without a
codified constitution lack the right of being obeyed, is not a true observation. Therefore,
countries like the UK, Saudi Arabia, Israel or New Zealand, who official don’t have a
constitution, wouldn’t have a legitimate authority, which in his opinion can only derive
from a constitution. This leaves the concepts of sovereignty of the people and
parliamentary sovereignty completely out of the picture.
Nonetheless I have to agree with Loughlin, when it comes to his critic of
MacCormick, who uses the word constitution synonymous with the word legal order. In
my opinion a legitimized legal order needn’t be based on a constitution – it can be,
though. Either way a legitimized legal order is indispensable for a functioning state
authority, with or without a constitution. Furthermore, I support Loughlin’s opinion in
terms of pointing out the existing differentiation between legal and constitutional
pluralism being ignored by MacCormick. In addition, the notion of a non-existent
constitutional pluralism is reasonable in my opinion, given that, as stated by Loughlin,
the true power lays within the member states scope of authority at the moment. Maybe
the term of legal pluralism should and could be a fitting subsequent object of discourse
in this regard - taking into consideration, that we still don’t have a completely federal
Europe, including a constitution. If, at some point, the failed ratification of a European
constitution is overcome, the recommissioning of a constitution for the European Union
might then initiate a real discussion about constitutional pluralism.
In conclusion, I’m neither a defender nor an adversary of constitutional pluralism
in contrast to Loughlin. I think, that there are aspects of this concept, which are definitely
practicable and implementable. In terms of a possible reissue of a European Constitution,
which is not at all unlikely, I personally think, that this theory could offer good services
to further explain the origins of authority and its legitimacy. But as Loughlin pointed
EGO402: EU Law and European System of Human Rights Protection
Sandra Zwick
13th week, 09.12.19
2
out correctly, there are major loopholes in the line of argumentation, which need to be
addressed as well as need to be adjusted to the future state of affairs.
How is the theory of constitutional pluralism perceived now in the discourse of
European politics? Where there any major shifts or researchers reacting to the critics of
Loughlin, which completely deconstructed the theory and all its agents?