Plural Constitutionalism as Theory and Method: A Reply to Critics

von Daniel Halberstam

I enjoyed the exchange on my article providing a qualified constitutional defense of Opinion 2/13. I will not delve into a point-by-point rebuttal of the critics here. Instead, I shall make three quick points and end with a methodological challenge in the interest of moving forward.

Mind the quotation marks

The title of my longer article is intended as an allusion to, and implicit critique of, Opinion 2/13’s unrelenting style – not an endorsement thereof. Hence the quotation marks surrounding the provocative phrase. The invocation of modesty, in turn, is an appeal to turn down the heat and focus more calmly on the substance (even though that may include some rather large claims). It will not help the EU, the ECHR, or the cause of human rights to adopt the quoted style of discourse without the quotation marks.

Human Rights ≠ Human Rights Regimes

Commentators are right to be concerned about human rights. But we must distinguish between human rights and human rights regimes. The ECHR is a particular human rights regime with a particular institutional structure that has its strengths and weaknesses. (The EU, as a constitutional regime of governance, has its strengths and weaknesses, too.) Just as constitutional law must be understood as mediated by the institutional reality and context in which it operates, so, too, the cause of human rights alone does not justify the extension of any given human rights regime. When the EU’s commitment to human rights is furthered by joining a particular human rights regime, it should be done in a manner consistent with the EU’s core constitutional architecture.

“Monism” versus “Dualism”

Several commentators invoke this idea to suggest there is no problem with Strasbourg deciding questions of responsibility or resolving inter-state disputes as a matter of Convention law ...

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