Revolutions, real contradictions, and the method of resolving them: The relationship between the Court of Justice of the European Union and the German Federal Constitutional Court

摘要

The German Federal Constitutional Court's (FCC) PSPP ruling has met with criticism of unprecedented fierceness: its doctrine, its politics, and its authors have been attacked and ridiculed. While I agree that the ruling has its weaknesses, I also believe that many reactions to it, including the commentary by Basedow et al., are flawed. They frame the PSPP ruling as an abrupt break in time-a revolutionary narrative of old and new, with the decision splitting history into before and after. This frame alters the meaning of what happened. It throws the FCC alone into the spotlight, keeps other actors and narratives connected with them in the shadow, places a huge burden of legitimacy on the FCC, and makes the ruling appear not merely as bad law, but as a political action in the guise of law. I argue that none of this does justice to the ruling or to the politics behind it. This begs the deeper question of why the ruling has elicited such Mosaic wrath. My answer is that courts read "their" political communities rather than merely legal texts-they link law to imaginations of self-government and popular sovereignty. In this social practice, the FCC operates at the thicker end of constitutionalism, with a surplus of authority, legitimacy, and, ultimately, political identity, as compared to the Court of Justice of the European Union, which labors at the thinner end of constitutionalism and must view the FCC, like many commentators do, as an idolater. This, rather than doctrine or politics, is where the "real contradiction" lies. There is no resolving this contradiction through law or institution-building. But the preliminary ruling procedure under Art. 267 of the Treaty on the Functioning of the European Union does provide a form for it to move around and resolve itself.