Constitutional Conflict as Judicial Civil Disobedience and Conscientious Objection

When it comes to the primacy of Union law, the Court of Justice and some national constitutional courts have displayed different opinions in the past. Eva Rom argues that constitutional conflicts can be better understood by looking at two concepts of legal and political philosophy: civil disobedience and conscientious objection.

Eva Rom focuses on the primacy of Union law, its properties, its justification, and – most delicately and most decisively of all – its limits. The Court of Justice of the European Union and some national constitutional courts have different understandings of where the primacy of Union law over national law finds its limits and whose task it is to define these limits. The consequence in certain cases is constitutional conflict. In the literature of Union law, one finds scholars drawing upon civil disobedience and conscientious objection to enrich the study of constitutional conflict, but this has not yet been done in an exhaustive, theoretically detailed manner. Eva Rom intends to remedy that. The literature on civil disobedience and conscientious objection contains important insights which can be drawn upon to build a framework with which to assess cases of constitutional conflict in the European Union. Civil disobedience and conscientious objection as concepts describing a qualified form of resistance will prove highly valuable to study in order to arrive at an analytically sharper understanding of constitutional conflict. The two concepts will not be used to formulaically defend breaches of Union law. The aim is not to provide for an apologetic endorsement of breaking the law. Instead, this project is aimed at moderation, differentiation, and at pondering the following question: Under what exact conditions could an opposing ruling by a national constitutional court be considered justified and what would the consequences of such a classification as justified be?

Introduction
I. Irreconcilability as the starting point - II. Conscientious disobedience: Is there space for resistance in a democratic regime? - III. Conscientious disobedience and constitutional conflict in the European Union: Of underexplored parallels between two highly normative debates - IV. Exploring the potential of conscientious disobedience for constitutional conflict in the European Union in a more comprehensive manner - V. Aims and inherent limits of this reconceptualisation - VI. General structure - VII. On a technical note
A. Constitutional Conflict in the European Union after PSPP
I. Introduction - II. Two irreconcilable visions of public authority in the European Union as the starting point - III. Constitutional pluralism as a response to irreconcilability - IV. Applying the language of legality & illegality to the different visions laid out - V. Chapter Summary
B. Conscientious Disobedience
I. Introduction - II. Civil disobedience - III. Conscientious objection - IV. Demarcating civil disobedience and conscientious objection - V. Readjusting the lens: Proposing an alternative understanding of conscientious disobedience as an intra-legal drama - VI. Chapter Summary
C. A Proposal for a Framework of Judicial Conscientious Disobedience
I. Introduction - II. Importing civil disobedience to the field of international and Union law - III. Proposing a framework of judicial conscientious disobedience - IV. Chapter Summary
D. Application to Selected Case Law
I. The Solange saga as an instance of judicial civil disobedience - II. The Taricco saga as an instance of judicial conscientious objection - III. Ajos as an instance of judicial civil disobedience - IV. Rereading recent judgments by the Trybunał Konstytucyjny as instances of judicial civil disobedience? - V. Chapter Summary
Conclusion
I. Towards a novel understanding of conscientious disobedience - II. Applying the framework - results - III. Once again: Limits of the reconceptualisation - IV. Unresolved questions - possible future avenues for research - V. Constant negotiation ahead

• By (author) Eva Rom