Lunch seminar with Max Steuer
Republican Constitutional Pluralism, (De-)Differentiation, and ‘Race to the Top’ in Fundamental Rights Protection
‘Constitutional pluralism’, the constitutional theory equivalent of ‘unity in diversity’ in European integration parlance, has lost much of its purchase since the rise of illiberal challengers, most visibly the governments of Hungary and Poland. These have engaged in a ‘race to the bottom’ of fundamental rights protection even beyond their jurisdictions, with vulnerable individuals such as asylum seekers or ethnic and religious minorities having been particularly targeted. The invocation of constitutional pluralism by illiberals, including the captured Polish Constitutional Tribunal, has prompted the proponents of the EU law supremacist narrative to contest its capacity to contribute to European democratization. Yet, even its proponents agree that, while it may have democratizing potential, this manifests through differentiation, the establishment of various degrees and kinds of association within the EU.
This paper addresses how, if at all, constitutional pluralism may be redeemed as a democratizing building block in Europe. While it supports existing efforts at distinguishing between conceptual claims of constitutional pluralism and its hijacked versions by illiberal actors, it also finds the existing approaches to constitutional pluralism insufficient to appreciate its democratizing potential. Inspired by republican theory, it subsequently argues for a connection between republican constitutional pluralism (RCP), fundamental rights protection and (de-)differentiation. Understood as pressing for the recognition of previously invisible sources of domination via a ‘race to the top’ in fundamental rights standards as the antidote to domination, it highlights the counterintuitive de-differentiating and democratizing capacity of RCP.
To illustrate this capacity, the paper invokes examples from the case law of the so-called Visegrad Four EU member state constitutional courts, as jurisdictions particularly under pressure of autocratization within the EU. It finds instances of RCP to be lacking in the region, which represents a missed potential for the democracy-enhancing capacity of these constitutional courts.
The paper subsequently responds to two major critiques levelled against RCP: firstly, that fundamental rights often conflict, and hence a ‘race to the top’ runs always at the expense of some rights as opposed to others and, secondly, that the idea of ‘the highest level of protection [of rights] is a meaningless concept’ (Weiler, ICON [2021], 183). It argues that, upon closer scrutiny, claims of rights conflicts are frequently conflicts between a right and an interest, in which case RCP argues for the primacy of the former, due to its greater capacity to reduce domination. In the minority of cases raising genuine rights conflicts, while not offering easy ways out, RCP requires engagement with the case law of the European Court of Human Rights (ECtHR), particularly in the wake of the EU’s anticipated accession to the European Convention on Human Rights, hence transforming the traditional binary relationship between the Court of Justice of the EU (CJEU) and member state constitutional courts to a triangular one with the involvement of the ECtHR. Here, two alternative scenarios arise. Firstly, ECtHR supremacy could be accepted from the perspective of its broader jurisdiction and historical authority as well as its primary focus on fundamental rights. Secondly, the triangular relationship could encourage a ‘race to the top’ raising claims for more ambitious rights protection standards in ECtHR case law in those cases in which the CJEU, an EU member state constitutional court, or both guarantee higher standards thereof.
Speaker bio
Max Steuer (MA [Central European University], LLM [University of Cambridge], PhD [Comenius University]) is Associate Professor at O.P. Jindal Global University, Jindal Global Law School, India, and Assistant Professor (on leave in Fall 2023) at Comenius University in Bratislava, Department of Political Science, Slovakia.
His interdisciplinary research focuses on questions of democracy protection and has been published in peer-reviewed journals, edited collections and encyclopedias including European Constitutional Law Review, Review of Central and East European Law, and the Max Planck Encyclopedia of Comparative Constitutional Law. In 2023, he is principal investigator for the project Illiberalism and the Constitution of the Slovak Republic: Political Discourse Analysis (Scientific Grant Agency of the Slovak Ministry of Education) and coordinator of the educational and awareness-raising initiative Talking Courts (US Embassy in Slovakia), among others. He has served as reviews editor of Volume 14 (2023) and guest co-editor of the special section on ‘Cultural Expertise and Litigation: Practices in South Asia and Europe’ for the Jindal Global Law Review.
While at iCourts, Max aims to develop the account of ‘republican constitutional pluralism’ (RCP) which argues that, if based in republican theory, constitutional pluralism-based arguments may be more resilient against abuse by illiberal actors, which has become one of the main sources of critique of constitutional pluralism as such. RCP has implications for the understanding of the relationship between European Union law and constitutionalism in the EU member states, among others. The broader project critically engages with the relationship between constitutional pluralism and differentiation in the EU as well.
Meeting ID: 688 0688 5914
Passcode: 400980