The European Union (EU) has taken core values such as human dignity, freedom, equality, the rule of law, and human rights as the foundation of its integration. These values are not merely political ideals but constitute the minimum common norms that make mutual trust and legal integration possible. However, over the past decade, certain Member States, notably Hungary and Poland, have been deeply committed to establishing illiberal governments that systematically weaken the rule of law and openly roll back democracy. In the twenty-first century—when the meaning and procedures of the rule of law and democracy have been consolidated to the point of being largely undisputed —the rule of law in certain countries has collapsed with remarkable speed. The illiberal actions of these governments are now emboldening other EU Member States. This article focuses on the theory of European constitutional pluralism, which has served as a useful normative tool in the unfolding of this situation. A theory of public law must safeguard constitutional values, confer legitimacy on the exercise of power while setting its limits, and provide standards for the protection of fundamental rights. Yet, the European version of constitutional pluralism has proven to be ill-suited to fulfilling such functions and roles, thereby allowing a deep erosion of the rule of law—a proposition that this study seeks to demonstrate. Constitutional pluralism originated from the premise that multiple constitutional authorities can coexist through mutual respect and cooperation. It became established as a public law theory explaining the relationship between the EU legal order and the constitutional orders of its Member States through landmark decisions of the German Federal Constitutional Court, including the Maastricht, Lisbon, and PSPP judgments. However, the theory has failed to perform the function of setting limits on the exercise of power or of establishing the hierarchy of legal orders. In some countries, it has been used as a justification for rejecting the binding force of EU law and undermining the rule of law. These shortcomings reveal that constitutional pluralism has not fulfilled its essential function as a public law theory: to protect constitutional values, provide procedural and substantive standards for resolving public disputes, and implement principles that limit the exercise of power. This study argues that restoring the rule of law in the EU requires not the defense of unlimited pluralism, but the institutionalization of pluralism premised upon normative universality and a hierarchical legal order. Furthermore, the concerns raised here are not confined to Europe; they represent an essential challenge for all democratic states, including Korea, in preserving the objectivity and universality of constitutional interpretation.
Hee Kim (Sun,) studied this question.