Introduction
During the constitutional debates of the 1980s and 1990s, the question of whether and how the Canadian Charter of Rights and Freedoms should apply to Indigenous governments was a recurrent and divisive topic. Some contended the prospective Charter should not apply, both because Indigenous jurisdiction is inherent and independent of the state and because the Charter reflects a European tradition of thought and governance that clashes fundamentally with traditional Indigenous political, legal and social systems.Footnote 1 Others decried the potential for ‘charter free zones’ that would leave Indigenous people vulnerable to abuseFootnote 2 or insisted on the exclusive nature of Canadian sovereignty.Footnote 3 Ultimately, these debates resulted in S35, which recognized ill-defined Aboriginal rights, and s25, which ‘shields’ those rights from Charter scrutiny.Footnote 4 Subsequent jurisprudence has continuously wrestled with the relationship between Indigenous and settler legal orders.
Interestingly, a parallel debate was unfolding in the European Union. Here, the question was whether EU law is subject to the constitutions of the member-states. The European Court of Justice (ECJ) argued the EU was sovereign in its own domains and thus enjoyed supremacy over national lawFootnote 5, while national courts insisted on their own sovereignty and duty to protect core constitutional identity from transnational encroachment.Footnote 6 Ultimately, the debate set in place an emergent process of judicial dialog and mutual condition-setting that continues to this day.Footnote 7 The resulting jurisprudence continues to be highly dynamic, as Europe too wrestles with the relationship between legalities.
In both contexts, actors are struggling with the coexistence of both competing sovereignty claims and divergent cultural identities in shared jurisdictional space. Both contexts evoke the contested possibilities of post-Westphalian political and legal community.Footnote 8 Scholars in both contexts have taken up the language of ‘constitutional pluralism’.Footnote 9 To my knowledge, however, almost no scholarship has compared the practices of Canadian and European courts or the literatures they have provoked, nor considered the possibility of reciprocally elucidating dialog between these fields.Footnote 10
Indeed, while political and policy comparisons between Canada and the EU are increasingly common, these typically use the framework of federalism, comparing the federal/provincial relationship with the Union/member-state relationship.Footnote 11 While this comparison can be illuminating, it represents a highly selective engagement with Canadian pluralism, neglecting perhaps the most dynamic and contentious elements. This article’s contribution is therefore to expand the comparative field by bringing in another set of relations – those between Indigenous and settler governance.Footnote 12 Such a comparison can allow Europeans to engage with the cutting edge of pluralist thought in Canada while also exposing Indigenous studies scholars to examples of pluralism beyond the colonial context, introducing both to new and productive literatures.
Admittedly, comparing EU/member-state relations to Canadian/Indigenous relations is in some ways an apples-to-oranges comparisonFootnote 13 – Indigenous nations are not states, and the EU does not have competences in relation to Europe’s Indigenous peoples. One form of pluralism challenges the state ‘from above’ while the other proceeds ‘from below’. One context is colonial, the other is not. One is intra-civilizational and the other inter-civilizational. The power relations at play are distinct. Yet there are also important underlying similarities. Unlike federal/provincial relationships, which occur within a single constitutional order, both the EU/member-state relationship and the Indigenous/settler relationship feature pluralism across multiple constitutional orders. Both also involve sui generis participants – the EU is not quite a federation and not quite an international organization; Indigenous nations are not western-style nation-states but not minorities either. As a result, both relationships represent a sui generis sort of treaty-federalismFootnote 14 which challenges traditional conceptions of political community, sovereignty and constitutionalism.
The idea is not, therefore to suggest the two contexts are equivalent, but rather to leverage both the similarities and the pernicious contrastsFootnote 15 between them to help theorists and practitioners in both fields to see their own practices in new ways, expose them to new ideas and techniques, and ultimately push us all towards a more nuanced investigation of constitutional pluralism as a general theory.
The following article thus provides a (necessarily schematic) overview of constitutional pluralism in each setting, introducing scholars of each field to the fundamentals of the other. I show that each context is concerned with questions of sovereignty and cultural difference, but that each takes a contrasting approach – Canadian courts focus on protecting cultural difference while attempting to avoid questions of sovereigntyFootnote 16 – while European discourse focuses primarily on questions of sovereignty without engaging as deeply with difference. The following section sketches some directions for future research, gesturing towards some of the ways that this comparison can contribute to both cases, deepen our theoretical understanding of the limits, potentials and dangers of constitutional pluralism, and add depth to existing comparative literature. In particular, I show that the Canadian and European approaches both, through distinct mechanisms, work to secure a privileged place for liberalism. Ultimately, I argue that the relationship between liberalism and constitutional pluralism is an important locus for further research in both contexts, and especially for scholars who seek to apply constitutional pluralism in transnational or global contexts.Footnote 17
Constitutional pluralism in Canada
Charter debates and constitutional politics
The recognition of Indigenous self-governance, and its relationship to the settler-Canadian constitutional order, has been a perennial object of contestation. While early colonists recognized and treated with self-governing Indigenous nations, they also worked to gradually undermine their self-governing status and subordinate them to settler law, and forcibly absorb them into the settler polity, slowly repositioning erstwhile allies as subjects instead.Footnote 18 Indigenous peoples have fiercely and consistently resisted this shift. The issue was a major flashpoint during the Constitutional debates of the 1980s and 1990sFootnote 19 and it remains at the cutting edge of Canadian jurisprudence, legal scholarship and social contestation today.
The application of the Canadian Charter provides a useful example. The Assembly of First Nations (AFN) – the national political association of status Indians in Canada – argued Indigenous people retain an inherent, pre-contact right to self-government through their own culturally distinctive legal and political systems.Footnote 20 From this perspective, self-governance within the confines of the Charter fails to recognize both Indigenous sovereignty and Indigenous cultural difference.Footnote 21
Conversely, the Native Women’s Association of Canada, among others, argued that exempting Indigenous governments from the Charter would leave the most vulnerable members of Indigenous societies – especially women – at the mercy of their governments .Footnote 22 For these voices, self-determination must go hand-in-hand with Charter protections. Many settler Canadians raised similar arguments, while others focused on the idea that Canadian law must apply equally to all Canadians – including Indigenous people.Footnote 23
Some suggested that Indigenous nations could square this circle by drafting their own Charters, which would protect individual rights without undermining collective autonomy.Footnote 24 For such documents to satisfy the concerns of the pro-Charter crowd, however, they would have to be functionally equivalent to the Canadian Charter. If this were so, they would fail to meet the cultural-difference-based concerns of the anti-Charter crowd.
Ultimately, the Constitution included s35, affirming the collective rights of Indigenous people.Footnote 25 However, it left these rights undefined and thus did not explicitly define the contours of a right to self-government. A separate clause provided for First Minister’s conferences to define said rights, but these failed to come to any agreement. The Charter also contained S25, which states that ‘the guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada’.Footnote 26 Whether s25 constitutes a ‘shield’ from Charter analysis or merely an interpretative framework was not clear.
In 1987, an attempt to amend the constitution was defeated in part for its failure to address self-governance.Footnote 27 In 1992, another package of constitutional amendments known as the Charlottetown Accords would have enshrined a right to Indigenous self-government, made it clear that the Charter would apply to Indigenous governments, and given Indigenous governments access to s33 – the notwithstanding clause that allows provincial and federal governments to temporarily override certain Charter protections.Footnote 28 However, these Accords also failed to be ratified.
As a result, the constitutional status of Indigenous self-government, the content of s35, and the question of to what degree such governments would be exempted from the Charter by s25, all remained open. After two failed Accords, politicians lost the taste for constitutional politics. Indigenous advocacy, both within and beyond Canadian law, has continued and the task of answering these questions has fallen increasingly to the courts.Footnote 29
The s35 jurisprudence
Initially, many expected the courts to find that s35 included a general right to self-government.Footnote 30 Discourses of ‘Treaty Federalism’Footnote 31 or ‘Treaty Constitutionalism’Footnote 32 made the case that Indigenous peoples were already in possession of sovereignty when settlers arrived, and thus that treaties should be understood as a sort of constitution through which Indigenous nations transferred certain jurisdictions to the Crown while retaining others. According to this logic, the purpose of s35 and 25 is to recognize independent Indigenous jurisdictions, sovereign in their own spheres just as the provincial and federal governments are in theirs.Footnote 33
The Supreme Court has repeatedly declared that the purpose of s35 is to ‘reconcile’ the fact that Indigenous nations were already exercising sovereignty when settlers arrived with the contemporary reality of Crown sovereignty.Footnote 34 However, the Court has been extremely hesitant to discuss s35 in jurisdictional terms.Footnote 35 Instead, it has generally approached the task of reconciliation by creating a series of Charter-like rights that hedge in settler sovereignty.Footnote 36
In Van Der Peet, the court ruled that s35 protects practices that are ‘integral to the distinctive culture’ of the claimant nation.Footnote 37 These practices do not need to be unique, but they must be an important part of what makes the culture what it is.Footnote 38 In Sparrow, it found that the Crown retains sovereign power to infringe Aboriginal rights provided it can ‘justify’ the infringement to the satisfaction of a settler court.Footnote 39 Thus, the Crown is positioned as sovereign and Indigenous peoples as minorities with a right to cultural difference.
Where self-government claims have arisen, the court has adopted a similarly culturalist approach. In Pamajewon, it found s35 precludes a broad, general right to self-government, grounding only specific jurisdictions that pass the Van Der Peet test.Footnote 40 In Reference in relation with the Act respecting First Nations, Inuit and Métis children, youth and families, the Quebec Court of Appeal took a distinct but similar approach, recognizing a generic right to self-government, but presenting it as grounding specific jurisdictions connected to ‘cultural continuity and survival’.Footnote 41 Thus self-government, like other rights, must be connected to the culture of the claimant nation and can be infringed by the Crown.
Without a general Aboriginal right to self-government, some have attempted to ground jurisdiction as an incident of land ownership. In Delgamuukw, the claimants explicitly sought recognition of their ‘jurisdiction and ownership’. As Chief DelgamUukw put it – ‘[w]e are not interested in asserting [A]boriginal rights – we are here to discuss territory and authority’.Footnote 42
Nevertheless, the court modified their pleadings into a case for Aboriginal title, which it defined as an essentially proprietary interest subject to the Crown’s underlying title and legislative authority.Footnote 43 Even the associated proprietary rights are subject to infringement.Footnote 44 In Campbell, however, the court found both that the division of powers between the federal and provincial governments is non-exhaustive and that the right to hold land communally implies a right to make collective decisions about the land, providing a potential back-door to broad jurisdictional recognition.Footnote 45 In Tsilhqot’in, the Court emphasized that title includes the ability to ‘use’, ‘control’, and ‘manage’ lands collectively – but stopped short of explicitly jurisdictional language.Footnote 46 It also affirmed the Crown’s underlying title and legislative authority and expanded the ability to infringe title rights to cover the provincial, as well as the federal Crown.Footnote 47 Ultimately, Tsilhqot’in leaves it unclear whether the title amounts to much more than the normal management rights associated with property ownership.Footnote 48
Thus, the s35 jurisprudence reflects a ‘thick’ conception of Crown sovereignty which positions Indigenous nations as non-sovereign communities within the Canadian state.Footnote 49 As the court wrote in Gladstone, Aboriginal people ‘exist within, and are a part of, a broader social, political and economic community, over which the Crown is sovereign’.Footnote 50 As a result, the court’s approach to reconciling Crown sovereignty with pre-existing Indigenous sovereignty does not revolve primarily around recognizing broad modern-day governing authority for Indigenous communities, but rather consists of granting specific rights designed to ensure that the exercise of Crown sovereignty does not unduly prevent Indigenous people from remaining distinct cultural communities.Footnote 51
The s25 jurisprudence
The purpose of s25 has been cast in a similar light. In an influential concurring opinion in Kaap, Bastarache J. explained that section 25 is engaged when ‘Charter protections for individuals would diminish the distinctive, collective and cultural identity of an aboriginal group’.Footnote 52 In McCarthy, the court concurred that rights attract s25 protection when they go to ‘the distinctive, collective and cultural identity of an Aboriginal group’.Footnote 53
What protection do these culturally distinctive activities enjoy? There have been two broad approaches in the academic literature and jurisprudence. The first approach sees s25 as a rule of construction that requires courts to ‘harmonize’ Charter and Aboriginal rights wherever possible.Footnote 54 The second approach sees s25 as a ‘shield’ which prevents the Charter from being applied to Indigenous governments at all.Footnote 55
There are also mixed approaches. For example, Macklem slots the acts of Indigenous governments into two categories: ‘external protections’ – acts which impact non-Indigenous peoples’ rights – and ‘internal restrictions’ – acts which impact the rights of members of the Indigenous community.Footnote 56 For external restrictions, the courts should seek a harmonious interpretation and, if none is available, the Charter rights of settler Canadians should prevail. For internal restrictions, the judiciary should seek a harmonious interpretation and, if none is available, s25 should provide a shield.
The jurisprudence has generally treated s25 as some sort of shield. In concurring reasons in Kaap Footnote 57, Bastarache J. suggested that s25 should be triggered once a prima facie Charter violation has been found, and if it applies, should prevent further Charter analysis. Dickson Footnote 58 and McCarthy applied the same approach.Footnote 59
The Canadian approach to constitutional pluralism
In sum, the jurisprudence generally treats Indigenous communities as cultural communities subject to both Crown sovereignty and Charter review. Settler sovereignty is, however, constrained by Indigenous rights, such that distinctive cultural practices can be shielded from both legislative infringement and Charter scrutiny.
At least two major lines of contestation help define Canadian debates, one concerning difference and the other sovereignty.
The first focuses on what degree of difference is acceptable. For example, doe s25 protect only relatively shallow differences – the sort of differences that can be ‘harmonized’ away through culturally sensitive interpretation; or does it also protect ‘irreconcilable’ differences that cannot be interpreted away? If so, are such differences acceptable only for ‘internal’ restrictions, or also ‘external’ protections? Stanley Fish suggests that such debates leave liberal pluralists in a bind – they can either impose the Charter on Indigenous governments without their consent, or else they must sacrifice the idea that rights are universal.Footnote 60 Either way, a core tenet of liberalism is compromised. This dilemma appears to drive much of the Canadian jurisprudence and constitutional debate.Footnote 61 Two types of mechanisms help mediate the tension. The first consists of rules of harmonious interpretation, ‘Indigenous’ Charters, Indigenous interpretation of the Canadian Charter – in essence, tools which soften the imposition of a settler legal framework by casting it in ‘culturally sensitive’ ways. The second consists of shielding mechanisms like s25 or s33, which protect Indigenous legal orders, under limited circumstances, from the ordinary need to conform to settler standards. Together, such mechanisms attempt to blunt Fish’s dilemma.
The second axis of debate involves the question of the degree to which Aboriginal rights encompass governance rights or jurisdictional authority. Most contemporary scholars agree that Indigenous claims demand a more robust governance dimension. Scholarly discourse can be loosely organized around two different approaches to that goal.Footnote 62 The first approach, typically called ‘reconciliation’, involves Indigenous nations exercising governance within the settler constitutional framework. By asserting rights, encouraging settler judges to draw on Indigenous legal traditions,Footnote 63 exercising powers delegated from settler governments, negotiating modern treaties, self-government agreements and the like, Indigenous nations can grow their governance capacity without directly challenging – indeed, by participating in – settler sovereignty. The second approach, ‘resurgence’Footnote 64 contests settler sovereignty more directly and is critical of participating in the forms of recognition that reaffirm it. Instead of seeking accommodation from the state, resurgence scholars advocate ‘turning away’ from the state, revitalizing traditional Indigenous institutions and practices, then enacting Indigenous autonomy directly, outside of and even against state institutions.Footnote 65 Most envision eventually negotiating some form of nation-to-nation arrangement that recognizes Indigenous nations as distinct constitutional orders.Footnote 66 Increasingly, this debate defines the legal and political landscape as Indigenous people exert agency both within and beyond settler sovereignty.
The two lines of debate also interpenetrate. Indeed, the question of sovereignty within or beyond the state is intimately tied to the question of cultural incommensurability.Footnote 67 If settler and Indigenous worldviews are commensurable, then some sort of hybrid state may be a viable solution. If they are not, then only independent, traditionalist institutions can properly recognize Indigenous difference. Different conceptions of difference can therefore drive different approaches to sovereignty. Conversely, the courts’ steadfast commitment to avoiding Indigenous sovereignty drives it both to focus on difference instead, and to consider itself empowered to set the terms of recognition unilaterally.
Ultimately, the jurisprudence treats s35 and 25 as tools to protect Indigenous culture and largely skirts the question of Indigenous sovereignty. Justifying their ability to unilaterally determine the scope of difference, however, inevitably draws the courts into questions of sovereignty, which continue to haunt contemporary jurisprudence. Indeed, constitutional scholar Kent McNeil calls the sovereignty issue an ‘unresolved constitutional conundrum’.Footnote 68
Constitutional pluralism in Europe
EU supremacy and national constitutions
The earliest treaties of what would become the European Union did not clearly establish the relationship between European and national law.Footnote 69 Some viewed the nascent transnational community as sovereign over its members; others saw it as merely a voluntary agreement between sovereign states.Footnote 70 At the time, the issue did not seem to need definitive resolution, both because integration was largely limited to steel and coal production and so community law was a relatively minor and discreet field of law, and because the integration process was enjoying a period called the ‘permissive consensus’, where integration was largely depolitisized.Footnote 71 As the Coal and Steel Community expanded, however, integration both spread into more policy areas and became more politically contentious, making the relationship between national and European law increasingly difficult to ignore.
During the 1960s, nationalist governments and courts alike were treating EU law as a voluntary commitment subject to state sovereignty.Footnote 72 The European Court of Justice (ECJ) took the opposite position, ruling that member-states had forgone a portion of their sovereignty and that EU law is supreme over national law.Footnote 73 In Internationale Handelsgesellschaft, the ECJ extended its claim of supremacy over national legislation to cover national constitutions as well.Footnote 74 National courts, although largely receptive to supremacy over national legislation, began to contest the ECJ’s claims to supremacy over local constitutional orders.Footnote 75
In a now famous pair of cases, the Solange decisions, the German Constitutional Court first ruled that because European law did not contain its own internal human rights protections, German courts may need to review EU laws for compatibility with German rights protections.Footnote 76 In this way, EU supremacy was subjected to certain conditions. This represented a clear challenge to the authority of the ECJ. Rather than confront the German court directly, however, the ECJ busily developed a human rights jurisprudence of its own. In Solange II, the German Constitutional Court responded, finding that the EU system now provided internal protections essentially equivalent to those in German Law.Footnote 77 As a result, German courts would not review EU laws unless evidence could be presented that the EU system as a whole no longer provided equivalent rights protection.
These decisions have been euphemistically referred to as the So-long-as decisions: so long as the EU maintains systemic protections essentially equivalent to the German constitution, EU law will be considered supreme by German courts.Footnote 78 The German Constitutional Court has built on this conditional approach since. In Maastricht, it introduced a form of ultra vires review, holding that EU law may not be treated as supreme if German courts found that the EU had exceeded its jurisdiction.Footnote 79 In Lisbon¸ it ruled that EU law could not affect the core identity of the German federation.Footnote 80 These ‘counter-limits’, or ‘locks’ as they are sometimes knownFootnote 81, represent a clear counter-claim – while the ECJ believes that member-states are no longer at liberty to set aside EU law, the German Court clearly believes otherwise.
This issue (nearly) came to a head in cases like Outright Monetary Transactions (OMT).Footnote 82 The German court had concerns regarding the European Central Bank’s bond-buying program. It made a reference to the ECJ, suggesting that it found the legality of OMT dubious without further limits and hinting that if the ECJ did not find it to be contrary to EU law, the German court may find it to be contrary to one of its locks. The ECJ upheld the program, but introduced additional criteria which, while not mirroring German suggestions, did speak to some degree to German concerns.Footnote 83 Apparently satisfied with the new criteria – or at least unwilling to press the issue – the German court declined to follow through on its threat to declare the program unconstitutional. In this way, Germany was able to leverage its locks to encourage the ECJ to introduce certain limits on the OMT program, in exchange for which it continued to support ECJ supremacy.
This conditional approach to supremacy has since spread around the continent, with most national courts asserting conditions of some sort on EU supremacy.Footnote 84 As in OMT, these conditions are articulated, monitored and enforced through a ‘constitutional dialogue’ – when a national court has concerns that an EU law may run afoul of one of its conditions, it can send a reference question to the ECJ asking it to clarify the doctrine, suggesting that it may violate one of the national court’s conditions, explaining why and sometimes implicitly suggesting an interpretation of EU law that would avoid the conflict.Footnote 85 The ECJ answers the reference, suggesting an interpretation which it hopes the national court will find acceptable. This process repeats until the two courts have co-constructed a result that satisfies them both.
For example, when the ECJ found French data collection laws violated fundamental rights, the Conseil d’État declined to find its review ultra vires, instead drawing selectively and creatively on the ECJ judgment to construct a more friendly outcome.Footnote 86 It also ruled that EU supremacy could potentially be set aside temporarily for national security purposes – implicitly threatening a more assertive stance if the ECJ pushed back. Thus, in an act of ‘loyal resistance’, the Conseil d’État proposed a policy compromise, affirmed EU supremacy and maintained its own claim as the arbiter of if, when and how supremacy operates all at the same time.
Typically, this sort of dialog allows the parties to find mutually agreeable arrangements without open judicial conflict. Occasionally, however, national courts have defied the ECJ outright.Footnote 87 When this occurs, compromise-seeking often moves to the political sphere. For example, In PSPP, the German court found an ECB policy and the ECJ’s judgment upholding it ultra vires and of no effect in Germany for lack of a proportionality review.Footnote 88 The ECB conducted such a review, the German government swiftly accepted it, disavowed its own court’s judgment and vociferously re-affirmed it’s commitment to EU law, defusing the conflict, though not addressing the underlying clash of supremacy claims.Footnote 89
Other cases have required more coercion. In the Polish rule-of-law saga, the populist government undertook judicial reforms designed to take control of its courts, the ECJ found the reforms contrary to EU law and the constitutional tribunal declared the ECJ review ultra vires. Footnote 90 The government supported the court, but a mixture of adverse ECJ rulings, political pressure, fines and withholding EU funds ultimately caused the government to partially reverse its reforms.
According to Sabel and Gerstenberg, the resulting system of conflicting supremacy claims and judicial dialog has ‘no final decider and no Archimedean point. Private litigation at the behest of aggrieved individuals sets in motion a process in which each court must explain its concerns, and its respective law, in terms that can be understood and shared across plural legal regimes’.Footnote 91 This arrangement is polyarchic, in that decisions are made horizontally with no final power, and deliberative, as each order is called upon to explain itself in a manner cognizable to the others.Footnote 92 While this approach can be fractious and often appears precarious, it has enabled unprecedented legal integration for decades.
The EU charter and member-state law
Thus, we might say that member-state constitutions apply to EU law, but not in the normal, direct way. Only the most essential parts are treated as counter-limits or locks; they apply with a certain margin of acceptable difference, and enforcement happens primarily through dialog and voluntary mutual adjustment, rather than unilateral pronouncement.
Since the EU has its own rights jurisprudence – and since the Lisbon treaty, its own Charter – the question also arises in reverse: does the EU Charter bind only EU institutions or does it also apply to member-state laws?Footnote 93 In its pre-Charter jurisprudence, the ECJ had held that member-states were subject to EU fundamental rights whenever they act within the ‘scope’ of EU law.Footnote 94 Article 51 of the Charter reframed the matter slightly, making the Charter applicable only where member-states ‘implement’ EU law, suggesting a desire for more constricted application. In Åkerberg Fransson, the ECJ resisted this narrowing, finding s51 in fact confirmed its earlier jurisprudence.Footnote 95 Some national courts signalled uneasiness.Footnote 96 In Siragusa, the ECJ responded with a position more restrictive than Åkerberg Fransson but not quite limited to implementation - member-state laws are subject to the Charter if they directly implement an EU law, EU law defines specific rules for the subject in question, there is substantive impact on EU law, or the goals of the legislation overlap substantially with EU law.Footnote 97 Once again, inter-institutional dialog is shaping the application of constitutional law.
In Melloni, the question was not whether member-states can violate the Charter but rather whether they are free to apply a domestic standard in place of the Charter when the national constitution provides more rigorous protections. If they are, the EU Charter would act much like national counter-limits, setting minimum human rights conditions on the constitutional autonomy of the member-states in certain areas. The ECJ found that national courts do retain such freedom – provided the primacy, unity and effectiveness of EU law are not compromised.Footnote 98 Where EU law provides exhaustive standards, however, deviating from them could allow some states to strike down Charter-compliant measures using domestic standards while others do not, undermining the unity and primacy of EU law.Footnote 99 This requirement too can be understood as a sort of counter-limit. In a now familiar pattern, the Spanish court effectively adopted the EU Charter’s standard rather than its own, but did so on the basis of national law, all the while insisting on its own status as the ultimate arbiter of rights protection.Footnote 100
In RTBF I, the German Constitutional court pushed a little further, ruling that where EU standards are not exhaustive, national courts can substitute their own standards without showing they provide higher protection, based on the (rebuttable) presumption that they provide at least equivalent protection.Footnote 101 In RTBF II, it affirmed that, where EU law is fully harmonized, EU rather than national right regimes should be applied – but it also asserted its own ability to review how domestic courts apply EU law, giving itself an independent interpretative role alongside the ECJ.Footnote 102 Again, the national court both affirms ECJ primacy and asserts its own agency simultaneously. As above, the ECJ has asserted primacy, national courts have negotiated the boundaries of that primacy and found mutually agreeable results without actually conceding their own sovereignty claims. Ultimately, in discretionary areas national charters must meet or exceed EU standards, while in fully harmonized areas the EU Charter must meet or exceed national standards, effectively creating a system of co-regulation.Footnote 103 As long as each party respects the conditions of its peers, the question of which order is ‘sovereign’ does not need a definitive answer.
A European approach to constitutional pluralism
As in Canada, European constitutional pluralism is concerned with both difference and sovereignty. The relative emphasis and the relationship between them, however, play out differently.
The main debate driving European literature and jurisprudence is the question of who is sovereign, the state or the Union. Their contradictory supremacy claims create a potentially high stakes conflict. Resolving these claims one way or the other is sure to alienate at least one party and thus could easily destroy the European integration project. No court wants to bear responsibility for this outcome, and this creates a strong mutual incentive to develop practices that do not require directly addressing the issue.Footnote 104
The European practice of constitutional pluralism is therefore centrally concerned with the mechanisms of dialog that allow questions of hierarchy to go unresolved, and by the question of what would or should happen if these practices ever fail. Counter-limits or locks allow national courts to lay out minimal conditions of cooperation and reference questions allow them to trigger dialog around those conditions, which in turn generates national support for EU supremacy that does not necessarily entail conceding their own sovereignty claims.Footnote 105 Likewise, the ECJ accepts national constitutional autonomy subject to its own counter-limits regarding fundamental rights and the unity and effectiveness of EU law. Each court is both a condition-setter and a condition-receiver. As long as its conditions are respected, each court can accept the authority of the other without compromising its own sovereignty claim.
Rather than relying on exceptions to supremacy, as Canadians have, Europeans have placed conditions on supremacy instead. While some scholars continue to advocate for either national or EU sovereignty, many have come to celebrate current arrangements, arguing that the resulting dialog is normatively superior to vesting final power in either party.Footnote 106
Another axis of debate concerns difference. Walker places theories of European pluralism along a spectrum from ‘thick’ to ‘thin’ approachesFootnote 107, where thick accounts posit shared normative meta-principles that play a key role in allowing questions of sovereignty to go un-resolved,Footnote 108 while thin accounts posit only a pragmatic modus vivendi rooted in a balance of political power.Footnote 109 Similarly, Hesselink sorts the various theories into ‘radical’ pluralist accounts, which do not posit any normative overlap between the systems, and ‘constrained’ approaches which see the parties and/or the process of dialog itself as structured by shared meta-principles.Footnote 110
A number of mechanisms reflect this tension. Article6(3) of the Treaty on European Union (TEU) recognizes – and ECJ jurisprudence constructs – a common constitutional tradition to which all members are, in their own distinct ways, committed.Footnote 111 In other words, it posits a set of meta-norms which constrain difference. At the same time, Article4(2) requires the Union to respect the member-states’ ‘national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government’.Footnote 112 Scholars debate whether this clause recognizes constitutional identities – that is to say, the specific ways shared constitutional values are institutionalized – or national identities that might include deeper normative differences.Footnote 113 Illiberal member-states have taken the lead in pushing for a more robust conception of national difference, while the ECJ has largely insisted that difference must fall within a constrained range.Footnote 114 As in Canada, potential clashes between distinctive cultures and protected rights are coming to the fore.
As in Canada, difference and sovereignty exist in relation to one another. Indeed, the assertion of a substantial normative overlap plays an important role in allowing participants to bracket questions of sovereignty – so long as all parties pursue largely compatible legal projects, the question of who is in charge does not really need a definitive answer. In turn, the resulting processes of dialog facilitate the emergence and maintenance of shared norms.Footnote 115 Conversely, a thick approach to difference is increasingly used to justify a nationalist approach to sovereignty and vice versa.Footnote 116
Overall, dramatic tensions around supremacy have created a jurisprudence that focuses on sovereignty and has, for the most part successfully, found ways to leave that question unresolved. In so doing, however, the EU has – perhaps inadvertently – made a constrained approach to difference a linchpin of the system. As actors increasingly contest difference, they in effect contest sovereignty as well,Footnote 117 showing again how interdependent these axes of debate are.
Constitutional pluralisms in conversation – A research agenda
Canadian and European constitutional discourses both share a concern with difference and sovereignty but have approached these issues in diverse ways rooted in their own contexts. Because of its colonial foundations, Canadian courts have shied away from Indigenous sovereignty, focusing instead on the protection of cultural difference. As a result, they position Indigenous governments as non-sovereign entities subordinate to the settler constitutional framework but use shielding mechanisms to carve out cultural protections. Because difference cannot be neatly reduced to the private sphere and severed from self-governanceFootnote 118, however, the Canadian jurisprudence is continually haunted by the underlying question of sovereignty.
In the EU, questions of pluralism have been expressed primarily as a matter of which legal order is sovereign. European courts have responded to this potentially destabilizing political dilemma by developing practices of dialog which effectively allow questions of sovereignty to go unresolved, but which assume a shared set of normative commitments. Thus, they avoid hierarchy in part by assuming only a constrained form of difference. Growing political and constitutional illiberalism, however, is bringing the issue of normative difference increasingly to the fore – and threatening to resurrect issues of sovereignty at the same time.
Of course, neither case represents an ideal-type, focusing on one element of pluralism to the exclusion of the other. Both contexts wrestle with both sovereignty and difference. Still, the difference in focus is notable. To oversimplify, where the Canadian system accepts difference on the condition that it be subordinated, the European system accepts non-subordination on the condition of non-difference. These differences are instructive, showing two potential meanings of constitutional pluralism – a system can be pluralist in the sense that it recognizes multiple sovereign sources of authority, or it can be pluralist in the sense of recognizing deeply different normative and ontological worlds – or both.
The two cases also center different mechanisms – while the Canadian approach focuses on securing (or denying) spheres of autonomy, the European approach focuses on condition-setting, dialog and mutual influence. Thus, the comparison clarifies how competing claims can be accommodated both through self-rule and shared-rule – what we might call pluralism-as-mutual-autonomy and pluralism-as-mutual-influence. This raises interesting questions about the connection between approaches and methods – do sovereignty-focused approaches lend themselves better to dialog and difference-based approaches to autonomy? Can we imagine mixing and matching? This suggests fertile ground for comparative work exploring the relative advantages and disadvantages of each model, as well as the capacity for blending or borrowing across models.Footnote 119
Underlying similarities between the two cases are equally instructive. Indeed, despite their differences, both approaches ultimately work to secure a privileged place for liberalism within the pluralist framework.Footnote 120 Thus, Canada is willing to recognize difference but only so long as it is subordinate to a liberal sovereignty, while Europe can recognize competing sovereignties but only so long as they are internal to a liberal normativity – in either case, accepting one form of pluralism without the other allows liberalism to act as the framework within which pluralism is contained. In this sense, the differences between Canadian and European pluralism can be understood as divergent routes to shared destinations.
From the point of view of non-liberal actors, either form of ‘pluralism’ amounts to little more than a wolf in sheep’s clothing – an updated form of liberal imperialism that accepts only thin and impoverished forms of the claims they wish to posit. Thus, a problem for both forms of constitutional pluralism – and arguably for the concept itself – is that existing practice largely accommodates difference or sovereignty, while non-liberal participants are generally committed to claiming some form of both. Indeed, in practice, the two become difficult to disentangle. This raises a profound normative and conceptual question – is it possible, or even desirable, for a constitutional system to bridge regimes which are both sovereign and deeply different? To put the question another way, what is the desired relationship between constitutional pluralism and liberalism? Do we imagine constitutional pluralism as a means to secure liberalism against non-liberal others, or as a means to render liberalism contestable by including non-liberal legalities in mutually transformative dialog?
This question will likely have very different resonance in Canada, where liberalism is oft seen as an oppressive and imperialist structure imposed on Indigenous peoples, and in Europe, where liberalism is oft viewed as an embattled bastion defending liberty from authoritarian and intolerant others. Indeed, the comparison reminds us to be clear-eyed that rendering liberalism contestable carries both risks and opportunities. If we refuse those risks, however, constitutional pluralism may never amount to more than the latest and most sophisticated stage of liberal hegemony. For those committed to the idea that constitutional pluralism can be something more – and, in particular, those who seek to use the theory in intracultural contexts, those who favour EU expansion into less stolidly liberal eastern Europe, or those who wish to explore the theory at global scales – this question is inescapable.Footnote 121
Hazarding answers to these questions is, unfortunately, considerably beyond the scope of this article. Given the existing scholarly lacunae, I aspire only to sow the seeds of comparative engagement between these discourses, providing a preliminary introduction that allows European and Canadian theorists to explore one another’s praxis and see it as a divergent approach to closely related practical and theoretical problematics. In so doing, I make the case for a research agenda which builds on the burgeoning comparative literature connecting Canadian and European pluralism, complimenting existing provincial/federal comparisons by drawing in an additional dimension of pluralist practice. My hope is that both the underlying similarities and the pernicious contrasts such engagement reveals can help theorists and practitioners in both fields to see their own practices in new ways, expose them to new ideas and techniques, and ultimately push us all towards a more nuanced investigation of constitutional pluralism as a general theory.
Competing interests
The author declares no known competing financial or personal interests that could appear to influence this work.
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