The European Protection of the Rule of Law and the Challenge of Constitutional Particularism
DOI:
https://doi.org/10.61823/dpia.2023.3.492Keywords:
constitutional pluralism, constitutional particularism, rule of law, loyal opposition, destructive oppositionAbstract
In this paper, I examine some recent decisions of Polish and Hungarian constitutional courts and attempt to place these decisions in the context of jurisprudential debates on constitutional pluralism. I conclude that the Hungarian and the Polish positions represent a special version of constitutional particularism, which, in the context of European cooperation, are coupled with a destructive oppositional attitude and are essentially based on the denial of constitutional pluralism. Given that these courts cannot be considered independent and do not engage in a substantive dialogue with the European Court of Justice, its decisions cannot be interpreted as forming part of the European common constitutional cooperation.
References
Avbelj M., Constitutional Pluralism and Authoritarianism, “German Law Journal” 2020, no. 21, pp. 1023-1031.
Bárd P., Pech L., The Commission’s Rule of Law Report and the EU Monitoring and Enforcement of Article 2 TEU Values, European Parliament’s Committee on Civil Liberties, Justice and Home Affairs and the Committee on Constitutional Affairs, 2022, pp. 1-152.
Blutman L., Decision of the Constitutional Court on whether the implementation of certain EU acts can be disregarded in the light of the Fundamental Law, “Jogesetek Magyarázata” 2022, no. 1, pp. 5-12.
Bobić A., Constructive Versus Destructive Conflict: Taking Stock of the Recent Constitutional Jurisprudence in the EU, “Cambridge Yearbook of European Legal Studies” 2020, no. 22, pp. 60-84.
Bobić A., Constitutional Pluralism is Not Dead: An Analysis of Interactions Between Constitutional Courts of Member States and the European Court of Justice, “German Law Journal” 2017, no. 18, pp. 1395-1428.
Fabbrini F., Sajó A., The dangers of constitutional identity, “European Law Journal” 2019, no. 25, pp. 457-473.
Flynn T., The Triangular Constitution. Constitutional Pluralism in Ireland, The EU and the ECHR, Oxford 2019.
Flynn T., Constitutional Pluralism and Loyal Opposition, “International Journal of Constitutional Law” 2021, no. 19, pp. 241-268.
Halmai G., National(ist) Constitutional Identity: Hungary’s road to Abuse Constitutional Pluralism, “EUI Department of Law Research Paper” 2017, no. 8.
Grabowska-Moroz B., How was the „rule of law” dismantled in Poland and what does it mean for the EU? The decision of the Polish Constitutional Tribunal of 7 October 2021 (K3/21) the European game changer or a quasi-juducial bluff? in La Unión Europea y el reto del Estado de Derecho, ed. S. Sanz Caballero, Pamplona 2022, pp. 277-294.
Kavanagh A., The Constitutional Separation of Powers, in Philosophical Foundations of Constitutional Law, eds. D. Dyzenhaus. M. Thorburn, Oxford 2016, pp. 221-240
Kelemen R.D., Pech L., Why autocrats love constitutional identity and constitutional pluralism. Lessons from Hungary and Poland, “Reconnect – Working Paper” 2018, no. 2 – September.
Kelemen R.D., Is differentiation possible in rule of law?, “Comparative European Politics” 2019, no. 17, pp. 246-260.
Kelemen R.D., Pech L., The Uses and Abuses of Constitutional Pluralism: Undermining the Rule of Law in the Name of Constitutional Identity in Hungary and Poland, “Cambridge Yearbook of European Legal Studies” 2019, no. 21, pp. 59-74.
Magen A., Laurent Pech L., The rule of law and the European Union, In Handbook on the Rule of Law, eds. Ch. May, A. Winchester, Cheltenham 2018, pp. 235-256.
Pech L., The Rule of Law in the EU: The Evolution of the Treaty Framework and Rule of law Toolbox, “Reconnect – Working Paper” 2020, no. 7 March.
Sadurski W., Poland’s Constitutional Breakdown, Oxford 2019.
Sajó A., Ruling by Cheating. Governance in Illiberal Democracy, Cambridge 2021.
Waldron J., Political Political Theory, Cambridge 2016.
Downloads
Published
Issue
Section
License
Copyright (c) 2023 Péter Sólyom
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.
