Why autocrats love constitutional identity and constitutional pluralism: Lessons from Hungary and Poland

Though the theory of constitutional pluralism was developed with the best of intentions in mind, it is
having destructive consequences that threaten the EU legal order. The theory of constitutional
pluralism had inherent flaws, but could function as a serviceable fudge to avert inter-court conflict so
long as all the courts involved engaged in sincere cooperation, dialogue and mutual accommodation.
However, with the emergence and ongoing consolidation of competitive authoritarian regimes in
Hungary and Poland, the days when one could assume all national judiciaries would engage in sincere
cooperation have ended and the dangers that were always inherent in the concept of constitutional
pluralism and the connected concept of constitutional identity have become manifest. In an effort to
justify their dismantlement of checks on their power and to shield themselves against potential EU
interventions, Hungary and Poland’s governments have turned – quite predictably we argue – to the
twin concepts of constitutional identity and constitutional pluralism. Constitutional pluralism is an
inherently dangerous doctrine, prone to abuse by autocrats and their captured courts, and it should
be replaced with a more traditional understanding of the primacy of EU law.