‘Constitutional Pluralism and Loyal Opposition’

Constitutional pluralism, long derided in some quarters as incompatible with the rule of law for reasons of legal theory, is now argued to be incompatible with the rule of law because of its use or abuse by the Polish and Hungarian governments in their clashes with EU norms and institutions. This paper argues that this criticism is ill-founded, and is far too quick to portray opposition to the CJEU’s heterodox account of the relationship between EU law and national law as disloyalty both to the claimed values of the Union and to the very concept of European integration. Instead, we must develop a concept of ‘loyal opposition’ within Union law and politics: a discourse more accepting of deviation from certain aspects of the received account of European constitutionalism, while resolutely opposed to the normalisation of authoritarianism in Europe.