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In her academic writings, Advocate General Tamara Ćapeta has observed that many EU rights have been developing on a case-by-case basis, but so far without “a general and comprehensive explanation that they form part of a liberal and tolerant democratic society” (pp. 225–236). Drawing on this observation, and against the backdrop of the Court’s ruling in the Hungarian case (Case 769/22 Commission v Hungary), I will argue in this contribution that “pluralistic European society” is not only a sociological concept but also plays an important normative role as an organising regulative concept in EU constitutional-legal interpretation. I begin by setting out some basic ideas and then conclude with some thoughts on the Court’s role and democracy.

A Proposal

The definite normative idea of European society is the idea of pluralism itself, meaning that Article 2 TEU should be interpreted to allow both individuals and groups to experiment with diverse ways of living. A pluralistic European society accordingly urges interpreters to seek “reflective equilibrium”; we begin with such settled convictions as that LGBT+ persons do not pose a threat to society and must not be exposed to hateful conduct. We then try to generate principles of some general scope and to match those general principles to concrete understandings of a good – liberal and tolerant – society, shifting our views about either principles or concrete understandings as becomes necessary to achieve pro tempore principled coherence open to further revision, case-by-case.

Crucially, however, the search for interpretive reflective equilibrium does not commit us to a dictatorial role for the Court at the expense of democracy. Instead, in a morally divided European society, even where red lines must be drawn to combat ethnocentric prejudice and false closure, the Court may assume an important democracy-enhancing role by providing vulnerable minorities with the necessary assurance of their equal democratic Union citizenship and ongoing co-authorship (and co-ownership) of the EU legal order.

The Radiating Effect of Art. 2 TEU

To begin with, notice that the values listed in Art. 2 TEU alongside the concept of a pluralistic society and that of “rights belonging to minorities”, do not come out of nowhere, as it were, but are elements of a dynamic process involving EU Member States, EU institutions, and Union citizens themselves. Recall that the two concepts – of society and of rights belonging to minorities – were neither present in early Treaty versions nor in the European Council’s (1993) Copenhagen criteria (which only mention “respect for and protection of minorities”). The EU, according to the Court, “brings together States which have freely and voluntarily subscribed to those values” (para 521). The Member States have endorsed these values as a matter of deliberate choice, that is. But, according to the Court, Article 2 TEU “is not a mere statement of policy guidelines or intentions” (para 525). Instead, from various textual, systematic, and historical arguments, “… it follows that the values enshrined in Article 2 TEU are, per se, legally binding, as a result of which there is an obligation, for the Member States and institutions of the Union, to respect, maintain and promote those values” at all times (para 535-36, my emphasis).

Call this the radiating effect of Art. 2 TEU, which serves as the EU’s foundational principle of political legitimacy. Because of their moral importance and urgency, the values listed in Art. 2 TEU must be “respected at all times” (para 560). The radiating effect means that these values permeate the entire EU legal order, guiding lawmaking as well as the judicial application of the law. In the Hungarian case, the Court was able to draw on our settled conviction as a fixed point that LGBT+ persons are not a threat to but an integral part of a pluralistic society and that by associating these persons with persons convicted of paedophilia, the Hungarian legislation committed a serious moral wrong. As the Court elaborates, “stigmatisation and marginalisation … [have the effect of] establishing, maintaining or reinforcing the social ‘invisibility’ of some members of society” (e.g. para 555). So, the Hungarian case was probably not a hard case at all, where the right answer was in any doubt, although it is, of course, very easy to imagine hard cases arising in the wake of this (or other similar) rulings.

Reflective Equilibrium and EU Constitutional-Legal Argument

Next, we ask: What is the role of such abstract concepts as pluralistic society in EU constitutional-legal argument? Following John Rawls, the thinker of political liberalism, the search for reflective equilibrium is key here. No approach to constitutional interpretation can be assessed without asking how it fits with the interpreters’ considered judgments, which operate at multiple levels of generality. According to Rawls, we start by looking into the morally diverse public political culture itself as the shared fund of implicitly recognised basic ideas and principles (pp. 8–9, 124). We collect such settled convictions as the rejection of slavery or, in our case, about LGBT+ people not being a threat to society, and then try to organize the basic ideas and principles implicit in these convictions into a coherent constitutional conception. As Rawls sees it, because contemporary public political culture may be of two minds at a very deep level, we then work from both ends, going back and forth from both abstract principles and existing judgments about particular cases. On due reflection, we revise either our initial understanding of principles and concepts or our existing judgments about particular cases.

So, the use of abstract concepts in legal argument does not amount to an exercise of deduction from dogmatically presupposed high principles of specific right responses to local controversies but always aims to bring the interpreters’ judgments, at multiple levels of generality, into alignment with one another. It would be a mistake, Rawls says, to think of abstract conceptions and general principles as always overriding our more particular judgments. The work of abstraction “is not gratuitous,” as Rawls insists, but rather “a way of continuing public discussion when shared understandings of lesser generality have broken down” (pp. 45–46). Our background conceptions of a liberal and tolerant society in which citizens can cooperate as free and equal and which prizes diversity and plurality, on the one hand, and paradigm instances of concrete injustice (e.g. involving LGBT+ people), on the other, mutually interpret – and serve to gradually transform – one another. This is especially important when hard cases arise, where interpreters must revise either abstract principles or specific judgments and express them in somewhat different ways than before.

The Democracy-Enhancing Role of the CJEU

Finally, the commitment to interpretive reflective equilibrium does not turn the Court into an enforcer of a good society by dictatorial judicial ratiocination and imposition “from above” at a cost for democracy. Instead, the Court’s ruling in the Hungarian case may be characterised as democracy-enhancing. Arguably, there is a – distant – echo of Footnote four of the U.S. Supreme Court’s ruling in Caroline Products (1938) – here, which suggested that “prejudice against discrete and insular minorities (…) which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities (…) may call for a (…) more searching judicial inquiry.” It is important to emphasize “distant” here, because LGBT+ people are, of course, not a discrete and insular minority but (as the Hungarian legislature will have understood by casting them as such and by “othering” them) exist very much everywhere in a pluralistic society. But they are vulnerable to silencing, as the Court recognized when it spoke of stigmatisation and marginalisation and social invisibility. Resentment towards them as a vulnerable group, which Hungarian legislation intended to arouse and fabricate by using the language of police and policing (“threat”), deprives these groups of the necessary assurances that a liberal and tolerant society must afford them. What the Court tried to accomplish in the Hungarian case – although the Court could and should have said much more here – is to restore (or establish in the first place) equal democratic Union citizenship, visibility, and voice of a vulnerable and hitherto (or newly) silenced minority as full members, participants, and co-deliberators in European society. For only when the necessary assurances of equal Union citizenship are in place, can even dissenters and despised minorities in society recognize the EU legal order as their own and have faith in the possibility of eventually persuading others, including ultimately the CJEU, to embrace their views about constitutional meaning.  In other words, EU law insists that democracy must operate in a fair, inclusive, and open manner.

The concept of a pluralistic European society, then, is simultaneously both – celebration of a descriptive social fact and a normative counterfactual. It is descriptive because it begins with some understanding about what is more or less taken for granted in European society. As an organising regulative principle with independent moral appeal, it guides our search for interpretive reflective equilibrium. A pluralistic European society, we might say, serves a performative concept that – as an interpretive practice that we share – specifies the point of view of you and me as Union citizens assessing and appraising the legitimation-worthiness of the EU as a shared common legal order as it currently stands.

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