🍻 Selber Bier Brauen

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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If there is anything we can say about European society, it is that it is pluralistic. This has recently been acknowledged by the CJEU in its decision of 21 April 2026 (Case C-769/22 Commission v Hungary, para 551). This should not be taken lightly – pluralism ought not to be another noble, yet empty phrase we add to the long queue of adjectives describing the EU’s constitutional system. Acknowledging pluralism as a claim about the nature of values rather than only as a doctrine of comparative constitutional law, may strengthen European social integration. It creates conditions under which different people can peacefully and fruitfully cooperate. Ignoring it – or worse, misunderstanding it – risks provoking a backlash and undermining what has been achieved with such great effort.

My suggestion is to understand the pluralistic nature of European society in light of Isaiah Berlin’s philosophy of value pluralism. A society “in which pluralism prevails” (Commission v Hungary, para. 551) may be understood in two ways: either as a particular liberal, constitutional, and tolerant model of the good society or as an irreducible plurality of many incommensurable yet distinct visions that must coexist. While the latter has ultimately prevailed in the Court’s judgement, some rather clear – and disturbing – hints of the former can be found in AG Ćapeta’s Opinion. If we take pluralism – in Berlin’s sense – seriously, only the latter understanding fits European society. The former risks turning Article 2 TEU from a set of red lines against the negation of EU values into a mandate for convergence towards one substantive vision of a good society.

Understanding Pluralism

Pluralism is notoriously difficult to conceptualise. We know, for example, that media pluralism exists when one TV station criticises our chancellor, whereas the other criticises our chancellor, but in more progressive terms. We call a party system ‘pluralist’ when the number of parties exceeds one (and no, communist satellite parties do not count). But what does it mean that a society is ‘pluralistic’?

I propose to understand ‘pluralism’ in the context of European society as a substantive claim about values, morals, and politics. It goes further than the traditional doctrine of EU constitutional pluralism, focusing not on public institutions and their relations but rather on the ontology of values and moral principles themselves. Shifting the focus of reflection from institutional relations to their metaethical presuppositions is not a small step. But neither is the gradual emergence of European society. It is therefore only fitting that public lawyers expand their normative arsenal accordingly.

Pluralism in this sense is usually associated with the philosophy of Isaiah Berlin. Berlin, widely considered one of the most important political philosophers of the 20th century, is most commonly associated with his writings on liberty, history of ideas, and ontology of morality. Berlin’s idea of “pluralism of values” is a certain meta-ethical, descriptive doctrine. His purpose was not to tell us what the right thing to do is but rather how the world of morals and politics operates. Berlin rejected moral relativism, arguing that the same or similar values can be observed in different times and places and that an intercultural discourse is possible, if not always conclusive. At the same time, he criticised moral monism, presuming that all political dilemmas can be solved in a uniform way and that rational inquiry will inevitably lead to some sort of moral harmony. Quite the contrary, conflicts and incommensurability of values are there to stay, and there is no reason to believe they can ever be overcome. Both rationalistic moral doctrines of the Enlightenment and totalitarian utopias are, in this regard, fatally mistaken.

The incommensurability of values poses a serious challenge to practical reasoning. According to Berlin, there is little point in establishing “orders of values” or searching for absolute standards. When faced with a choice between two incommensurable, yet valuable options, sometimes we simply know that neither is the right one. Choice, often tragic, means irreversibly losing something, and yet the choice needs to be made. The development of political thought is not a gradual move towards a perfect society but rather a history of continuous compromise-building, always temporary and unstable, trading off valuable pursuits.

European Society is Pluralistic

Berlin’s account of pluralism is particularly helpful in explaining the emergence of European society. If we begin to think about pluralism as a meta-normative fact, not a normative ideal we need to introduce and promote, some tensions within the EU become easily explainable – Europeans can share the same core body of values yet disagree as to their relative importance and the way particular political conflicts should be solved. The same or similar questions may be answered differently, and there is no reason to assume that only one answer can be the right one, or that some ultimate moral harmonious order will one day be discovered or established. Those disagreements are normal, reasonable, and will likely persist for the foreseeable future. This property of moral and political discourse may later be reflected in institutional settings designed to account for it. EU constitutional pluralism may well be one answer to this challenge. Yet it is the nature of morality that requires us to design flexible institutions, not the other way around.

The explanatory power of pluralism holds true also for more recent developments. While supporters of deeper European integration may see a landslide victory of TISZA in Hungarian elections as a manifestation of a feeling of belonging to the European community, sceptics may point out that Magyar’s electoral platform was conservative, perhaps slightly nationalistic, not fully fitting into the pro-European picture painted in the West. If one adopts a pluralist perspective, there is no tension here – one can prioritise a certain way of life while belonging to the society where other ways prevail. The point is not Hungary as such, but the fact that pro-European belonging need not imply convergence towards one liberal-progressive conception of social life.

This does not mean that every moral position can be reasonably held in a pluralistic society. Not all disagreements are reasonable. Lord Hoffmann was right when he wrote that the problem posed by pluralism is “not the conflict between good and evil but the conflict between good and good”. The Court in Commission v Hungary very carefully refrained from arguing what is the right thing to do, limiting itself to pointing out what is surely wrong – negating (“running counter”, para 555) EU values. Such positions cause justified resistance and may simply not belong to European society.

There Is No Single “Vision of a Good Society”

The cautious approach adopted by the Court in Commission v Hungary reflects Berlin’s belief in both the objectivity of values and the possibility of their irresolvable conflict. By focusing on serious and persistent breaches, the Court preserved Article 2 values as a common minimum rather than turning them into a foundation for ever-expanding creative jurisprudence – a risk Armin von Bogdandy has aptly described as a “tyranny of values”.

The Opinion of Advocate General Tamara Ćapeta paints a different picture. The AG recognises that societies around the world differ and choose to be governed by different principles (para 156). According to AG Ćapeta, the role of Article 2 is different in this context: its values constitute a vision of “what is a good society” (para 157). They are not merely a common core but the foundation of a certain unitary model towards which all Member State societies should gradually converge. This claim goes further than the minimalist approach adopted by the Court in the final judgement.

The belief expressed by AG Ćapeta is not unknown in the philosophical debate about pluralism. Authors such as William Galston, George Crowder, and even John Rawls – though not a pluralist in the strict Berlinian sense – have argued that pluralism is more than merely a description. According to them, the pluralistic nature of our moral world entails a particular moral position – namely a liberal, constitutional, and tolerant state. Only under such conditions can a pluralistic society thrive. AG Ćapeta’s idea of a “vision of a good society” can well be understood in this tradition: as the belief that pluralism itself presupposes a common liberal-constitutional model of society (para 157).

But from the standpoint of Berlin’s philosophy, this is not how we should see pluralism on the level of European society. Putting aside the obvious ‘is-ought’ issue, this view oversimplifies something more fundamental: what we consider a proper institutional setting is largely dependent on which values we seek to promote, and those values themselves can be incommensurable. Does this “vision of a good society” entail a Rawlsian neutralist liberalism? Raz-style perfectionism? Or maybe communitarian liberalism, championed by Charles Taylor? Just as each of those authors (roughly) belongs to the wider pluralist tradition, so too does each of their visions promote other valuable goals. Choosing one means losing some benefits of the others. If we really acknowledge pluralism, no single vision is simply right.

Red Lines Work Both Ways

Since pluralists’ claim is first and foremost descriptive, it does not follow automatically what the EU institutions should do about it. They may simply choose to ignore it and act as if there were a single model of a good society. “We live in a pluralistic society”, they would argue, “but we act as if we were in a monistic one”. But this would be a mistake, and a rather costly one. Trying to enforce a unity of values, where there is none, will inevitably cause a backlash, and rightly so. Restraint is necessary.

Similarly, a Berlinian perspective gives reasons to resist the assumption that Article 2 values should automatically prevail over non-Article 2 ones. This sort of lexical priority cannot be justified within pluralistic European society. There can be values other than those mentioned in the Treaty that some ‘member societies’ may see as central. Some Scandinavians may see social security as prevailing over some instances of (economic) liberty, whereas Poles or Hungarians may consider tradition to trump solidarity. As long as this does not lead to the negation of EU values, such discrepancies must be recognised and accepted. “Priorities must be established”, wrote Berlin, but they can “never [be] final and absolute”.

It is, however, not enough to rely on the self-restraint of some of the more enthusiastic actors within EU law. The utopia of a singular vision will not disappear. It may reappear, often in good faith, through official acts, judicial reasoning, strategic litigation, lobbying, or scholarly advocacy. This is where European constitutional law scholarship has an important role to play: in ensuring that the toolbox offered to those in power is not overused. Transparency is one such indicator. When enforcing EU values, institutions should clearly declare so, instead of relying on façade formalism or shaky procedural grounds to sound impartial. The other indicator is what type of public law theories are employed on the European level. As a rule of thumb, if more than one theory of how a certain tool (such as the proportionality test) should be applied exists, it may be a good idea to turn to the one not called “maximalist”. Settling for a compromise, even without a full theoretical agreement, may be a better course of action than searching for the (potentially non-existent) correct solution.

The pluralistic nature of European society needs to be taken seriously. Some breaches of the fundamental values of the EU are no longer acceptable. But the red line approach works both ways. If the EU institutions begin to use their newfound powers too enthusiastically and impose their vision of a good society too eagerly, they risk provoking the very backlash that would undermine this achievement. Some conflicts are here to stay. Such is the nature of our normative world.

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The Inter-American Court of Human Rights has just handed climate litigators in Latin America the most powerful tool they have ever had. Advisory Opinion OC-32/25, issued in 2025, does not merely interpret existing rights in the context of the climate crisis. It restructures the procedural architecture of climate litigation by inverting burdens of proof, authorising the presumption of causal links between state emissions and climate harm, and recognising satellite imagery as evidence that states must make accessible to victims. For organisations that have spent years fighting for communities on the front lines of the climate emergency, this is not an incremental development. It is a transformative moment.

The Opinion did not emerge from a vacuum. Over the past decade, the Inter-American Court has built the foundations step by step. In 2017, Advisory Opinion OC-23 established the right to a healthy environment as an autonomous right under the American Convention – not a derivative entitlement, but a freestanding legal guarantee with its own independent status. That standard moved from theory to practice in the contentious case of La Oroya v. Peru, where the Court found that severe environmental contamination created a systemic risk to life, health, and physical integrity. OC-32/25 is the third step in this trajectory – and by far the most ambitious.

The Opinion characterises the climate crisis as a human rights problem that falls disproportionately on those already marginalised. It maps the vulnerabilities of Latin America and the Caribbean with precision, identifying Central America, the Amazon, the Caribbean and the Andes as zones of existential risk. The figures the Court cites are sobering. In 2021, the region counted 17.1 million internally displaced persons due to climate-related causes. The top one per cent of the population generated 92 per cent of per-capita CO₂ emissions in 2019, while the bottom 50 per cent generated just 0.27 per cent. Those who emit the least suffer the most.  Across these ecosystems, indigenous peoples and traditional communities are disproportionately affected by ongoing violations of their rights linked to climate change.

A New Autonomous Right

From the right to a healthy environment, the Court derives a new autonomous right: the right to a healthy climate, defined as the right to live in a climate system free from dangerous anthropogenic interference. The Opinion treats this right as an indispensable precondition for the exercise of all other human rights in the context of the climate emergency. States are accordingly bound by a standard of heightened due diligence. Climate governance is no longer treated as a matter of political discretion alone. States must prevent climate harm inside and beyond their borders, require environmental impact assessments to include specific analyses of greenhouse gas emissions before authorising projects, and set ambitious, progressive reduction targets calibrated to the best available science. The scientific consensus reflected in IPCC assessments is explicitly treated as the legal reference standard.

The Court adds a prohibition on regression: protection levels already achieved are a floor, not a ceiling. It extends due diligence obligations not only to states’ own activities but also to companies operating under their jurisdiction. These propositions are not entirely new, but the Opinion consolidates them into a unified framework and gives them the authority of a definitive Inter-American interpretation. For litigation purposes, the catalogue of obligations is now largely settled.

Procedural Rights as the Real Innovation

If the substantive obligations are important, the procedural innovations are transformative. The most significant contribution of OC-32/25 for climate litigation is not the declaration of a right to a healthy climate – it is the way the Opinion restructures the access rights framework. Indeed, the Court developed two very valuable elements: the right to science, and standards of proof and evidence that strengthen climate litigation.

“The right to science includes access to the benefits of scientific and technological progress and to the co-production of knowledge between scientists and holders of local, traditional and indigenous knowledge.” (par. 473)

The right to science, grounded in Article 13 of the International Covenant on Economic, Social and Cultural Rights and read together with OC-32/25, creates enforceable obligations for states to guarantee effective access to scientific climate knowledge. States can no longer rely on claims of scientific uncertainty or insufficient knowledge: policies must be based on the best available science and updated as that science evolves. Environmental impact assessments (par. 362), national adaptation plans (par. 388), and Nationally Determined Contributions are treated as auditable documents that must rely on scientifically credible evidence and remain transparent (parr. 510, 511 and 486). Most significantly, judges can and must evaluate whether the scientific basis relied upon by the state satisfies Convention standards (parr. 488–539). This substantially expands the scope of judicial review of climate policy within the Inter-American system.

Reversing the Burden of Proof

Proving a direct causal link between a specific state’s emissions and a specific harm has historically been the single greatest obstacle in climate litigation – technically demanding, judicially contested, and practically out of reach for most affected communities. OC-32/25 dismantles that obstacle in four concrete moves.

The Opinion acknowledges that climate litigation is characterised by marked asymmetries between parties in their access to technical and scientific information. National courts must therefore adopt measures – including the reversal of the burden of proof – to guarantee effective judicial protection. The language is direct: “the burden of justifying any denial always falls on the State” (par. 490). In matters of information access passivity is not an option for the state.

Second, the Opinion accepts a presumption of the causal nexus between a state’s greenhouse gas emissions and the degradation of the global climate system, and in turn the link between that degradation and the risks facing people and ecosystems – provided this is anchored in IPCC assessments. This responds directly to the attribution problem that has shaped the limits of climate litigation for decades. Courts are no longer required to resolve the full scientific chain of causation in each individual case.

Third, the Opinion introduces alternative standards of proof. Access to climate justice does not require proving individualised causation for each harm. It is sufficient to demonstrate the generation or tolerance of significant risks through state inaction, and the effective exposure of people or groups to those risks. Communities do not need to show that a specific tonne of CO₂ from a specific state caused their specific flood. They need to show that they were exposed to foreseeable risks that the state failed to address.

Fourth, the Court highlights satellite evidence as particularly relevant in climate cases and requires states to ensure cooperation and technology transfer to make such evidence accessible to victims in judicial proceedings. This is a practical recognition that the evidentiary tools needed for climate litigation are often technically sophisticated and economically inaccessible to the communities that need them most.

What Changes for Litigation

Taken together, these four innovations transform the strategic landscape for climate litigation across the Americas. Organisations like AIDA can now challenge fossil fuel projects whose environmental impact assessments fail to incorporate adequate climate analysis – invoking the right to science directly. We can contest state climate policies on the grounds of scientific insufficiency or obsolescence. We can bring cases on behalf of entire communities without proving individual, direct harm, thanks to the broad standing the Opinion recognises. And we can defend indigenous territories by connecting climate damage to collective territorial rights through a framework that no longer demands the near-impossible standard of individualised causation.

OC-32/25 is not a self-executing judgment. Its standards will need to be invoked, argued, and developed case by case before the Inter-American Court, the Commission, and national courts across member states. Resistance from states that seek to preserve the status quo is predictable. But the architecture is now in place: the applicable rules have changed.

At AIDA, we have spent years litigating in a region where the gap between states’ formal climate commitments and the actual protection experienced by communities is vast. OC-32/25 gives us legal instruments to narrow that gap. It does not ask us to be more optimistic. It asks us to be more ambitious – in the cases we choose, in the standards we invoke, and in the connections we draw between international law and the communities on the front lines of the climate crisis.

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