The Struggle Within: Liberal and “illiberal” constitutional idioms in the European Union

This paper explores the ambiguity of "integration through law" and courts, by showing how an “illiberal constitutionalism” has taken shape in the EU, not against but through EU law. It will argue that, contrary to what is often assumed, the claims made by “illiberal” Member states are in part expressed and justified with the very vocabulary and tools of EU law. Based on an analysis of constitutional documents produced by Hungarian and Polish authorities, as well as proceedings of the ECJ, it will focus on their uses of the language of “constitutional pluralism”, a theory originally developed to describe, as well as vindicate, the EU as a “post-sovereign” system after Maastricht. The paper will show how Hungarian and Polish authorities have used this language to articulate a deeply different conception of the constitutional framework of democracy. Empirically, this analysis will add to a growing body of literature reflecting on the abuses of EU legal concepts and tools, on the one hand, and on the crisis of the rule of law, on the other. It also is of some normative importance to political theory, if only because it recalls the weakness of a vision of the rule of law and constitutions resting entirely on legal-institutional arrangements, at the expense of a more comprehensive reflection on the political conditions it requires to operate.