Does the court of justice own the treaties? Interpretative pluralism as a solution to over‐constitutionalisation

Research output: Contribution to JournalArticleAcademicpeer-review

Abstract

It is often assumed that Court of Justice interpretations of EU law are definitive and binding. However, this conflicts with conventional ideas about the trias politica, as well as with the principle of conferral, and rests on no more than the Court's own assertion. It also has harmful policy consequences, forcing national courts into constitutional resistance and, in claiming to fix the meaning of the Treaties, smothering Union politics. Interpretative pluralism, by contrast, insists on the possibility of diverging interpretations. That allows for wider participation in the construction of EU law, while retaining the integrity of Union law through commitment to shared texts and a balance of power between institutions. Institutional disagreements are reframed, not as conflicts between legal orders, but as conflicts about the meaning of a shared one. This approach is more profoundly integrative than the Court's top‐down approach, and also allows for greater diversity and experiment.

LanguageEnglish
Pages358-375
Number of pages18
JournalEuropean Law Journal
Volume24
Issue number6
Early online date5 Nov 2018
DOIs
Publication statusPublished - Nov 2018

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court of justice
pluralism
treaty
European Law
legal order
interpretation
balance of power
integrity
commitment
participation
Law
politics
experiment

Cite this

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abstract = "It is often assumed that Court of Justice interpretations of EU law are definitive and binding. However, this conflicts with conventional ideas about the trias politica, as well as with the principle of conferral, and rests on no more than the Court's own assertion. It also has harmful policy consequences, forcing national courts into constitutional resistance and, in claiming to fix the meaning of the Treaties, smothering Union politics. Interpretative pluralism, by contrast, insists on the possibility of diverging interpretations. That allows for wider participation in the construction of EU law, while retaining the integrity of Union law through commitment to shared texts and a balance of power between institutions. Institutional disagreements are reframed, not as conflicts between legal orders, but as conflicts about the meaning of a shared one. This approach is more profoundly integrative than the Court's top‐down approach, and also allows for greater diversity and experiment.",
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Does the court of justice own the treaties? Interpretative pluralism as a solution to over‐constitutionalisation. / Davies, Gareth.

In: European Law Journal, Vol. 24, No. 6, 11.2018, p. 358-375.

Research output: Contribution to JournalArticleAcademicpeer-review

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