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This chapter critically analyzes current institutional models addressing rights' conflicts in the EU. Much of the academic debate has focused on whether state constitutions or EU Treaties should be regarded as the supreme law of the land; and whether constitutional courts or the ECJ should have the final say in case of conflict. The chapter seeks to demonstrate the shortcomings of hierarchical models relying on supremacy as the principle structuring interaction between norms protecting rights. In addition, this chapter shows that specific proposals formulated from non-hierarchical approaches are unsatisfactory as well. Even though these specific proposals are rejected, a pluralist framework regarding the structure of power in the EU is advanced. As such, a pluralist model furthers the opportunity to overcome the dangers of exacerbated state sovereignty by fragmenting public power among several institutions beyond the state. At the same time, a pluralist model limits the excesses of concentrating power at the supranational level by establishing mutual checks and balances between the national and supranational orders.

Some important recent contributions have expressed doubts about viewing the described approaches as pluralist. There are several main lines of this fundamental critique. Firstly, some argue against the very idea of pluralism by claiming that it is no different from the traditional, monist paradigm. Secondly, others start with the same point, but then argue that the only existing variant of pluralism still distinct from monism faces insurmountable problems from integrity and is thus unviable in that sense. Thirdly, there are those who find this rapidly expanding field just too messy and thus in a sense too vacuous to be able to provide any meaningful conception of pluralism. This chapter shows that after the comprehensive mapping analysis, which decodes the whole picture of the common branch and its ramifications, the criticisms appear in a new light and must largely be rejected.

The previous chapter argued that it was possible for a form of legal pluralism to arise within a legal order and, furthermore, that this was, or may become, a characteristic of a number of the legal orders that are connected to the European Union. This chapter reflects on a second type of pluralism, constitutional pluralism. It contends that this is distinguishable from legal pluralism, and that, additionally, constitutional pluralism also casts some light upon the nature of the European Union. This requires us to address a question which has often been raised in European scholarship: that is, whether the European Union is, or may become, a state, and what the implications would be for its citizens and Member States if the Union were to gain statehood. The chapter starts by considering two forms of constitutional ordering — the federation and the confederation — and compares those with the model of the state provided in earlier chapters. It then turns to the European Union, and contrasts that polity against these orderings, concluding that the Union stands somewhere between a federation and a confederation. It is the location of the Union in this conceptual borderland which generates a special, perhaps unique, form of constitutional pluralism.

This chapter contends that diversity should be welcomed rather than disdained within the contract law frame, not simply because it is politically expedient to do so but because diversity is seen to offer a number of important advantages. Moreover, diversity is not antagonistic to the notion of Europeanization and may even provide a new paradigm for legal integration. Legal pluralism is offered as a useful theoretical construct from which the normative appeal of diversity can be evaluated. Drawing on the literature on global and constitutional legal pluralism, the chapter demonstrates that pluralism can create opportunity for experimentation, innovation and mutual learning. However, for its benefits to be maximised and its disadvantages minimised, pluralism should be managed within a framework of coordination. With this aim, the chapter advances a number of soft law governance mechanisms and institutions for coordinating the various sites at which contract law operates.

The initial finding of mapping analysis is that there are several different meanings of “constitutional pluralism” used by different authors, and that those different conceptions often appear within wholly different discourses. When they do work within the same discourse, the theories contradict each other to the degree of considering each other monist. Thus it seems that they do not constitute any distinctive branch. It looks like there is only a fancy common rhetoric behind a group of proposals with no common core that are thus falsely suggested to constitute some kind of novelty. Yet, it is argued that one “missing link” can nonetheless be found in the whole of this scholarship, and it comes from MacCormick’s foundational conception as exposed in Chapter 1. This chapter concludes by showing how this decodes the whole branch and solves its labyrinth. It also provides the whole picture of MacCormick’s conception of pluralism that has never before been fully explained.

The examined versions of constitutional pluralism fall within the scope of the pluralist branch as distinct from monism. This does not mean that all are equally sound. Nor do they harbor the same potential for further contribution to Europe and the world as such. Some of them (Weiler/MacCormick’s substantive pluralism) seem to take a sounder path than others (Walker/Maduro’s much more procedural variants), and the potential of these different visions consequently also varies. This chapter provides a comprehensive inter-theoretical assessment that engages the different approaches with each other and at the level of their deepest value underpinnings, which have been previously identified and elaborated in the mapping chapters. Such an assessment not only reveals certain remaining weaknesses in these approaches—in some greater than in others—but thereby also begins to pave the way towards the superior path, to be then explored in greater detail in the remaining chapters.

This chapter argues that the relative authority account offers a ‘fourth way’ of understanding inter-authority relationships in the European Union, and an advance upon the ‘third way’ of constitutional pluralism. Relative authority is neither constitutionalist, pluralist, nor ‘constitutional pluralist’. In particular, its combination of procedural and substantive elements, and its rejection of independent assessments of legitimate authority, distinguishes it from leading contending theories.

This chapter engages with existing literature in both legal and constitutional theory, bringing disparate strands of theoretical insights into direct conversation in order to examine their explanations of plurality of authority. The chapter argues that studies of international or transnational law, shared or cooperative sovereignty, constitutionalism and constitutional pluralism, all invoke plurality of authority, but have inadequately addressed the puzzles it raises. In particular, existing work leaves open several conceptual and normative puzzles surrounding the plausibility of plurality of authority, including its effect on the legitimacy of plural authorities, and the implications of coordinated, cooperative or conflicting relationships between authorities. This chapter argues that existing work depends upon a complex notion of overlapping authority, but does not analyse just what that means or what would make it legitimate.

This concluding chapter summarizes and brings together the book's central argument for a lex pacificatoria as a new law of the peacemakers. It proposes an ambivalent response to the new lex, and concludes by suggesting a concept of law that is necessary to ‘doing good’ in peace negotiations and when working to implement peace agreements. This concept of law involves six key commitments: to legal pluralism, constitutional pluralism, to recognition of law's performative dimension, to negotiated justice, complex accountability, and to enabling moral and political imagination.

Constitutionalism 3.0 pushes the constitutional project beyond national bounds. It thereby represents the most perfect mediation of the universal idea of equal liberty with particular realizations. The transcendence of particularity is built into national constitutions through the systematic incorporation of horizontal encounters with other constitutional projects. Therefore, mutual borrowing and peer review become most salient features of constitutional law. The overall makeup of cooperation or coordination within peer review institutions remains, however, pluralistic and anarchical. The transnationalization of the national constitution is matched with the emergence of post-national citizenship. This reintroduces a strong bourgeois element into this final state of the constitutional project. Not by accident, constitutionalism loses sight of the second stage of emancipation and accommodates widespread deference to executive authority. Eventually, the question must arise whether constitutionalism has not even tacitly returned to its pre-modern design.

Chapter 4 tackles the consequences of the fact that the EU and its Member States share the ‘European constitutional space’. It combines the sensitive relationship between EU law and Member State constitutional law and the complex legal issues surrounding the EU’s foreign affairs federalism, ie the parallel existence of the Union and the Member States as actors on the international stage. The chapter shows that despite constitutional pluralism and plurality in international representation, there is an overarching quest for unity and coherence. In this quest, the EU’s foreign policy objectives assume the position of the overall substantive rallying point for the external action of the Union and its Member States. They are conditioned and operationalized through a range of legal principles, including constitutional identity, conferral, the duty of sincere cooperation, and unity in the international representation of the Union. While being constrained, the Member States are not fully eclipsed as international actors.

From the perspective of K-Universe, the formation of sovereign states is governed by recursive applications of K-Algorithm, and results in T-Isomorphs. Chapter 7 proposes Sierpinski recursion as an intuitive and commonsensical alternative to the existing ones, confronting it with those that can be gleaned from four constitutional theories––foundational constitutionalism, constitutional pluralism, para-constitutionalism, and radical pluralism—imagined also as potential problem-solving templates. In order to look at these theories more practically, what also needs to be reimagined is the conception of ultimate constitutional authority: away from the preoccupations with origins and narratives, and towards fuzzy, yet discernible mental image: a multi-dimensional matrix of presumed authority-challenges that informs the theorists’ attitudes towards a range of relevant issues in constitutional theory—from narrative identity and the character of political collectivity to constitutional pluralism and constitutionalism.

This chapter discusses the pros and cons of the constitutionalist paradigm. Critics of global constitutionalism doubt the empirical reality of the phenomenon called constitutionalization, call into question the analytic value of constitutionalism as an academic approach, and fear that the discourse is in normative terms dangerous because it is anti-pluralist, artificially creates a false legitimacy, or promises an unrealistic end of politics. The chapter counters these objections and argues that global constitutionalization is apt to compensate for globalization-induced constitutionalist deficits on the national level; that a constitutionalist reading of international law can serve as a hermeneutic device; and that the constitutionalist vocabulary allows to unveil legitimacy deficits of international law and to suggest remedies. Global constitutionalism therefore has a responsibilizing and much needed critical potential.

The detailed examination of the remaining weaknesses shows that for pluralism truly to succeed, it needs a partial further refinement at its foundation. It is argued that a particular intact version of the universal equal respect needs to be understood as underlying the conception. Part of such a foundation must also be a unique type of substantive pluralist challenge between the confronting pluralist orders. The challenge must be sufficiently strong so that it can move the orders towards their dialectic elaboration and adoption of the pluralist building blocks. It must also be sufficiently sound so that it leads them to elaborate/adopt the truly sound set of pluralist building blocks compatible with that intact universal respect. Such an improved foundational conception of substantive pluralism not only avoids those serious weaknesses identified in the previous chapters, but is also the only one capable of unleashing the historic potential for democracy implicit in Europe’s new post-sovereign context.

This chapter shows how the construction of a more applicative form of the sound conception of substantive pluralism would proceed through such an improved foundation. This kind of pluralist approach leads to a further refinement of the substantive pluralist building blocks observed in the existing pluralist theories thus far, and to the development of further key substantive pluralist building blocks in the field of democracy. This sketches a more complete picture of substantive pluralism and its enhancement of democracy as the upshot of the process. Provided that Europe gets it right at its constitutional foundations, it can open the route for humanity to gradually, but inevitably, reach a further historic stage of democracy. This has been unattainable throughout our monist age, and because of monism. We conclude that the branch of constitutional pluralism thus reoriented and refined has the potential to be considered the superior new approach within constitutional thought.

Chapter 1 examines in detail only the core of the pluralist claim as introduced by Neil MacCormick seminal article “Beyond the Sovereign State.” This core is analytically examined so that the entire picture it posits is teased out for the first time. This more complete picture is important as some of the new clarifications presented about this core will later prove decisive. For instance, only one tiny part of MacCormick’s core idea, which is deliberately separated and explained in this chapter, will later form the “missing link” or the minimum common denominator of the entire pluralist branch, without which constitutional pluralism could not be defended as being a separate new branch of constitutional thought. It is also observed in this chapter how the entire core of MacCormick’s idea belongs exclusively to the foundational discourse as defined by Ariadne’s Thread.