Legal Order, Legal Pluralism, Fundamental Principles. Europe and Its Law in Three Concepts

eulj_604 358..384

Legal Order, Legal Pluralism,Fundamental Principles. Europe and Its

Law in Three Concepts

Giulio Itzcovich*

Abstract: The essay analyses the way in which the concepts of legal order, legal pluralismand fundamental rights have been used to describe (and decide) what European integra-tion is (and what it ought to be) from the perspective of the law. The essay does notprovide a legal theory but limits itself to investigating how certain concepts have beenemployed to justify legal decisions and to construct legal theories. The juridical discourseon Europe is examined to identify some trends in contemporary legal culture: the declineof a tradition of legal thought, ‘legal dogmatics,’ the vanishing of the distinction betweeninternal and external law (between domestic law and international law, and betweenpositive law and morality), the growing importance of fundamental rights discourse, thecentrality of balancing test, the widespread criticism of legal science’s claim to neutralityand the consequent normative turn affecting legal scholarship.

I Introduction

Speaking in 1969 to an audience of lawyers, Pierre Pescatore, one of the most influentialjudges of the European Court of Justice (ECJ) at the time of the constitutionalisationof the EC Treaties, said that a gradual shift in the case law of the ECJ was occurring.From an initial emphasis on the separateness of EC law and national law (‘EC law andnational law as distinct, monadic worlds, each one living according to its own logic’),the Court was now moving to ‘more conciliatory expressions’ by making reference tothe need of ‘cooperation’ with the national courts:

Instead of speaking of “separation” . . . it is necessary to use words expressing contact, penetration,overlap or . . . integration; words expressing the existence of a system of relations governed by acoherent idea of order and unification.1

* Research Fellow in Legal Philosophy, Brescia University. I am indebted to Loïc Azoulai, Marzia Barbera,Mauro Barberis, Bruno Celano, Riccardo Guastini, Giuseppe Martinico, Giampaolo Parodi, FrancescaPoggi for insightful observations. An earlier version of this article was published in ‘Diritto pubblicocomparato ed europeo’, 1/2009, 34–60, with the title ’Ordinamento giuridico, pluralismo giuridico, prin-cipi fondamentali. L’Europa e il suo diritto in tre concetti’.

1 P. Pescatore, ‘Diritto comunitario e diritto nazionale secondo la giurisprudenza della Corte di giustiziadelle Comunità europee’, (1970) V Foro italiano 39.

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At the time the ECJ was—as it still is today, one might suggest—‘in search ofauthority.’2 Although its judges were eager to say that it already was a full-fledged‘decision-making authority,’3 as a matter of fact the Court was a more or less authori-tative judicial body striving to forge—in the words of Pescatore—a ‘transnationalEuropean jurisdiction’ comprising both the ECJ and national judges.4 This meant, andstill means, that the ECJ had to create mutual trust and reciprocal recognition ofauthority with the national courts. If a unified and coherent European legal system wasrequired, as Pescatore and many other EC scholars thought and think, then the taskfacing the Court was to develop shared commitment and understanding: an attitudeof ‘dialogue,’ as it became customary to say. On its part, the call for dialogue was closelyassociated with the need, if not for a unitarian and homogeneous European legal culture,at least for a common legal language, common conceptual tools for articulating the‘dialogue’. It is clear that such a project could not but stimulate massive changes in theway jurists think and argue, even in the way they conceive of their role and responsibility.

The topic is far from being new, but a great deal of work has still to be done indeveloping a comprehensive account of the ways in which European integrationaffected legal semantics and legal culture.5 This essay aims to contribute to an accountof that sort by focusing on three key concepts of the legal discourse on Europe—legalorder, legal pluralism and fundamental principles. Over the years, a vast literature hasgrown around these three concepts, and therefore this essay will be highly selective. Itwill attempt to clarify how certain words have been used to conceptualise (and decide)what European integration is (and what it ought to be) from the perspective of the law.This essay will not propose a theory of legal order, legal pluralism and fundamentalprinciples but will limit itself to analysing how these concepts have been used to justifycertain legal outcomes and to construct certain legal theories.6 In this way, it willprovide a piece of internal and acontextual history of the legal discourse on Europe.Making abstraction of the many institutional, political and cultural factors whichin various way affected the vicissitude of the three concepts, this essay will attempt toclarify some of the technical and, so to say, purely legal reasons which impinged on thelegal discourse on Europe.

The paramount relevance of contextual factors is unquestionable, as well as theindirect relevance of purely legal dynamics affecting different areas of the law, such as

2 On the ECJ’s ‘search for authority’ at the beginning of its constitutionalisation efforts, C.J. Mann, TheFunction of Judicial Decision in European Economic Integration (The Hague, Nijhoff, 1972), providesa particularly revealing and thoughtful overview.

3 U. Everling, ‘The Court of Justice as a Decisionmaking Authority’, (1984) 82 Michigan Law Review1294–1310: the ECJ is ‘the supreme interpreter’ of EC law; however, ‘courts create their own legitimacy bythe quality of their decisions’, and therefore the ECJ’s task ‘includes not only the application of the formalrules of the Community legal order but also the realization of . . . requirements of substantive justice’(at 1310, 1308 and 1294).

4 P. Pescatore, ‘L’integrazione europea: una nuova prospettiva per il potere giudiziario’, (1975) V Il Foroitaliano 105–113, at 113, speaking also of ‘judicial diplomacy’ in order to characterise the collaborativeattitude of the ECJ vis-a-vis the national courts.

5 Amongst recent contributions, see M. de S.-O.-L’E. Lasser, Judicial Transformations: The Rights Revolu-tion in the Courts of Europe (Oxford, Oxford University Press, 2009).

6 G. Tarello, ‘Ordinamento giuridico’ (1975), in Id., Cultura giuridica e politica del diritto (Bologna, IlMulino, 1988), at 173–204, 174: ‘it is not possible to describe the concept of legal order by consideringthe term “legal order” as the name for an objective fact or for an essential feature of (every) legal system.We should rather analyse how and why speakers use the term “legal order”, for what purposes, and thecultural and political operations that the concept has made possible’.

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constitutional law and administrative law, international law, labour law, etc. Limitedas it is, however, the history of legal concepts reconstructed in this essay can offer someuseful insights for constitutional history and legal theory. It will show what Pescatoreand many others had already envisaged or recorded: the tendency to move away froma theory of the closed, self-contained legal order to a pluralist doctrine based on themutual recognition of authority. Moreover, this essay will analyse juridical discourseon European integration to pinpoint some critical aspects of contemporary legalculture: the decline of a tradition of legal scholarship, ‘legal dogmatics,’ the vanishingof the distinction between internal and external law (between domestic law and inter-national law, and between positive law and morality), the growing importance offundamental rights discourse, the centrality of balancing test (Abwägung), the wide-spread criticism of legal science’s claim to neutrality and the consequent normative turnaffecting legal scholarship.

This essay will provide some evidence of the emergence of these trends within aspecific area of legal scholarship (EU studies). To this end, it will be necessary to lookthoroughly at a given scholarly tradition of legal positivism, ie 20th-century continentallegal dogmatics.7 That highly technical, sophisticated and somewhat esoteric discourseis almost incomprehensible today, especially for anyone brought up in the common lawtradition. However, it deserves close scrutiny: by re-reading the early juridical debateon Europe, it will be possible to identify some breaks with the past, as well as importantlines of continuity between that tradition of legal scholarship and contemporary legalculture.

II Legal Order in Transition

Talking about European integration and the concept of legal order, we must first of allrecall the European Court of Justice (ECJ) landmark decision in the Van Gend en Looscase of 1963: Community law is ‘a new legal order,’ distinct from international publiclaw, able to confer enforceable rights on individuals.8 But we could also mention anessay, which has since been virtually forgotten, by the prominent Italian internationallaw scholar Gaetano Morelli. Morelli argued, nine years before the Van Gend en Looscase, in 1954, that the European Coal and Steel Community was a new, self-containedlegal order, distinct from international law and able to impose its norms on individuals

7 In a very broad sense, the expression ‘legal dogmatics’ is synonymous with ‘legal scholarship.’ Morespecifically, it refers to the task of interpreting and systematising the existing law. Still more specifically,‘legal dogmatics’ refers to a certain way of performing that task, ie to a distinct style of legal scholarshipwhich traces its roots back to the Historical School of Hugo and Savigny and the Conceptual Jurispru-dence of Puchta and Windscheid. Legal dogmatics distinguishes itself both from natural law theories andfrom the exegetic approach to legal scholarship. Its main features are the effort of delivering a coherentand systematic description of the law by way of conceptual construction and logical abstraction; therejection of textualism and a certain disregard for the original intentions of the legislator; the claimto objectivity and neutrality—legal scholarship is conceived as ‘legal science’ and value judgments aredismissed or disguised. On legal dogmatics, see K. Larenz, C-W. Canaris, Methodenlehre der Rechtswis-senschaft (Berlin, Springer, 1995); G. Tarello, ‘Formalismo’ (1961), in Id., Diritto, enunciati, usi (Bologna,Il Mulino, 1974), at 19–50; E. Paresce, ‘Dogmatica giuridica’, Enciclopedia del diritto (Milano, Giuffrè,Vol. XIII, 1964), at 678–712; J.H. Merryman, ‘The Italian Style I: Doctrine’, (1965) 15/1 Stanford LawReview 39–65; RM.G. Losano, Sistema e struttura nel diritto, Dalle origini alla scuola storica (Torino,Giappichelli, Vol. I, 2002), at 213 ff.

8 ECJ Judgment of 05/02/1963, C-26/62, Van Gend en Loos (Rec. 1963, 3).

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(coal and steel producers).9 Apparently, Morelli was using the same dogmatic lineof reasoning, the same conceptual structure that we will find in the Van Gend en Loosdecision: a new legal order was born, distinct both from international law and domesticlaw; a legal order which imposes obligations on individuals and confers upon themenforceable rights.

It is not my intention to maintain that Italian international law scholars were the firstto conceive one of the fundamental concepts in the subsequent constitutionalisationof the Community treaties.10 The concept of legal order underlying Morelli’s essay andthe Van Gend en Loos case was indeed already profoundly embedded in ContinentalEuropean legal culture. It was a fundamental concept of 20th-century European publiclaw—it was not strictly confined to Italian jurisprudence. Therefore, European inte-gration could readily be conceptualised in terms of a ‘new legal order.’ To understandwhat this meant, we need to examine closely the debate among legal theorists andscholars on the concept of legal order and on the relationships between internal law andexternal law.

First of all, it must be stressed that the concept of legal order is not at all easy tograsp, as it is highly technical: it developed mainly in the legal culture of Germany,Austria, Italy and Spain in the first half of the 20th-century. Despite being a funda-mental concept of European public law, it is much less universally recognised than weare now accustomed to think.11 For a long time, the expression ‘Rechtsordnung’ wasalmost untranslatable in English. Lord Alexander J. Mackenzie Stuart, the first judgeof the ECJ from the UK, believed that the English neologism ‘legal order’ could beconfused with the expression ‘law and order.’12 In the 1950s and 1960s, the expressions‘ordre juridique’ and ‘ordonnancement juridique’ were still fairly rare among Frenchjurists13 and, in any case, they had not taken on that specific technical meaning that wefind in German and Italian legal scholarship.

In these countries, the concept of legal order had been conceived and used invery diverse ways since the beginning of 20th century. The most important pointsof reference are Santi Romano’s L’ordinamento giuridico (1917–1918) and Kelsen’sDas Problem der Souveränität (1920), but we can trace its use even further back tothe work of Triepel (1899) and, in Italy, to the writings of Anzilotti (1902, 1905),Donato Donati (1906), Marinoni (1914) and Perassi (1917). In the 1920s and 1930s, theconcept of legal order gained wide currency in all legal disciplines, including legal

9 G. Morelli, ‘Appunti sulla CECA’, (1954) 37 Rivista di diritto internazionale 3–18, at. See also Id., ‘Stati eindividui nelle organizzazioni internazionali’, (1957) 40 Rivista di diritto internazionale 3–25, at 9 f.

10 There might be, however, some textual evidence to support that thesis. According to P. Pescatore, Dirittocomunitario e diritto nazionale, cit., 41, the expression ‘“Community legal order” . . . acquires its fullmeaning in the working language [of the Costa vs Enel decision], that is Italian.’ as it is ‘a quasi-philosophical expression which suggests the completeness and consistency of what is called a legal system.’

11 See G. Tarello, ‘Ordinamento giuridico’, cit., 174 and 179; N. Bobbio, Teoria dell’ordinamento giuridico(Torino, Giappichelli, 1960), at 4: ‘it is only relatively recently that the legal order has been studied indepth.’

12 Lord Mackenzie Stuart, The European Communities and the Rule of Law (London, Stevens, 1977), at 2 f.According to H.G. Schermers, D. Waelbroeck, Judicial Protection in the European Union (The Hague,Kluwer, 2001), 5 at note 1, legal order ‘may not be a well-known English expression but it seemsappropriate.’

13 C. Leben, ‘Ordre juridique’, in D. Alland, S. Rials (eds.), Dictionnaire de la culture juridique (Paris, PUF,2003), at 1113: ‘The concept took longer to become established’; G. Tarello, ‘Ordinamento giuridico’, cit.,177: ‘As is well known, the French language has no word for the Italian “ordinamento.”’



philosophy.14 Finally, in the 1960s, Kelsen, Bobbio and Hart provided the most well-known and influential formulations of the concept.15

A The Concept of Legal Order. Sovereignty (Autonomy)

Summarising and simplifying somewhat, we might say that in this literature legal orderis taken to mean a set made up of elements (generally norms, but some would alsoinclude social behaviours and practices) ordered (both in the meaning of ‘prescribed’and in that of ‘put in order’16) on the basis of a principle of legitimacy that is emptyof content, ie on the basis of a ‘formal grounding of validity.’ This first point deservesto be stressed: a legal order is said to be sovereign or self-contained because it isassumed that it grounds its authority upon itself. This means that it decides autono-mously on the contents of its norms and on the scope of their validity. The validity ofa legal order might be territorially delimited or confined to certain individuals, but whatcharacterises a legal order is the fact that it decides autonomously on the extension ofits own territorial and personal sphere of validity.

In this regard, the Permanent Court of International Justice, Kelsen and the Italianjurist Balladore Pallieri had all corrected some early assertions made by Triepel andAnzilotti: the difference between international law and domestic law is not that theformer imposes obligations on States, while the latter applies to individuals.17 On thecontrary, international law may impose its norms on whomsoever it wishes, includingindividuals, just as a State may, if it so wishes, address its norms on other States, oreven on their citizens, wherever they may be domiciled. Such norms may be ineffective,but they will nonetheless be valid, both under international law and domestic law,respectively. A legal order is defined neither by its territorial sphere of validity nor byits personal sphere of validity. It is defined precisely by its capability of determining thescope of these spheres—the boundaries of its own jurisdiction—on the basis of a formal(autonomous) grounding of validity. It is a set of norms which establishes the mem-bership criteria of its own elements. ‘[T]he norms of which it is composed . . . deriveexclusively from it, as it is a perfect and closed whole and, in a word, autonomous’(Felice Battaglia18).

14 For bibliographical references, see G. Itzcovich, Teorie e ideologie del diritto comunitario (Torino,Giappichelli, 2006), ch. 2.

15 H. Kelsen, Pure Theory of Law (1960), (Berkeley, University of California Press, 1967); N. Bobbio, Teoriadell’ordinamento giuridico, cit.; H.L.A. Hart, The Concept of Law (1961), (Oxford, Oxford UP, 19942).Actually, Hart can only partially be linked to this typically Continental European tradition, although hewas in close dialogue with it and was influenced by it.

16 R. Guastini, Distinguendo. Studi di teoria e di metateoria del diritto (Turin, Giappichelli, 1996), at 281, note1; F. Viola, Autorità e ordine del diritto (Torino, Giappichelli, 1984), at 55: ‘Law can produce order onlywhen it is ordered, or at least it can be ordered, as it is endowed with an intrinsic rationality.’

17 G. Balladore Pallieri, ‘Le dottrine di Hans Kelsen e il problema dei rapporti fra diritto interno e dirittointernazionale’, (1935) 14 Rivista di Diritto internazionale 24–82. See also Permanent Court of Interna-tional Justice, Jurisdiction of the courts of Danzig (Series B, no. 15, 17–18): according to the intention ofthe contracting Parties, the object of an international agreement may be ‘the adoption by the Parties ofsome definite rules creating individual rights and obligations that are enforceable by the national courts.’See H. Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts. Beitrag zu einer reinenRechtslehre (Tübingen, Mohr, 1920), It. transl. Il problema della sovranità (Milano, Giuffrè, 1989), at 183:‘It cannot be seriously said that domestic law and international law have different objects.’

18 F. Battaglia, ‘La sovranità e i suoi limiti’, Scritti giuridici in onore di Santi Romano (Padova, Cedam, Vol.I, 1940), at 178. See T. Perassi, ‘Teoria dommatica delle fonti di norme giuridiche in diritto internazionale’



Let me call ‘autonomy’ (originarietà, Eigenständigkeit) this first defining feature ofthe legal order as a technical concept.19 The autonomy of the legal order means thata certain norm belongs to the legal order only if its creation has been authorised bythe legal order. When, in the 1950s and in particular the 1960s, several Community lawscholars made the slogan ‘autonomous legal order’ their battle cry, they meant aboveall this: the validity of Community law depends on the will of the Member States onlyhistorically, because, from a Community viewpoint, the basic norm is the system of theTreaties;20 the Treaties should have been conceived as the ‘first Constitution’ of theCommunity.

B Exclusivity (Authority)

A second defining feature is less universally accepted by 20th-century legal theory, butis even more important to understand the juridical discourse on Europe during thetimes of the Treaties constitutionalisation. To indicate this aspect, German legal scho-lars use the term ‘unity of law’ (Einheitlichkeit), while Italian scholars talk of ‘exclu-sivity’ (esclusività) of the legal order. I will use the expression ‘authority.’ A legal orderexercises authority when it excludes the relevance of norms not belonging to the system.

If a legal order is exclusive, the norms of other legal orders are not relevant of theirown force, even if at times the legal order may attribute relevance to them, by makingreference (renvoi) to these norms or by conferring them authority (Ermächtigung).When this happens, these external norms are incorporated, transformed into domesticnorms, nationalised21 or they are simply considered as mere facts to which the legalorder connects certain normative consequences. In any case, the ‘subjects’ of thelegal order—citizens, officials, judges—will always be subjects of one sole authority:ultimately, they will be required to apply the norms of the domestic legal order andonly these norms. According to the civil law scholar Guido Tedeschi, this is ‘thefundamental—we might even say solipsistic—character of the sovereignty or exclusi-vity of every legal system’.22

Incidentally, it should be noted that this technical concept of authority is not inopposition with the concept of freedom. On the contrary: it is often said that the rule

(1917), in Id., Scritti giuridici (Milano, Giuffrè, Vol. I, 1958), at 240 (‘the decision as to the binding forceof a norm, ie its membership of a legal order, is a decision for which the legal order provides the criterion’).

19 This is a stipulative definition of ‘autonomy’ (autonomy as originarietà, as normative sovereignty)that differs from the one traditionally used by Continental legal dogmatics. Dogmatics usually opposesautonomy to sovereignty and takes the former to be mean a derived, prima facie and gradualauthority—an authority that is a matter of degree and that can be defeated. I will later use the term‘authoritativeness’ to indicate this idea.

20 For earlier Community law scholarship, see eg R. Monaco, ‘Caratteri istituzionali della Comunità eco-nomica europea’, (1958) 41 Rivista di Diritto internazionale 46: ‘The starting point is the needto see Community law as an autonomous legal order.’ Similar ideas were expressed by C.F. Ophüls,L.-J. Constantinesco, P. Pescatore and many others. For detailed references, see G. Itzcovich, Teorie eideologie, cit., ch. 3, and R. Barents, The Autonomy of Community Law (The Hague, Kluwer LawInternational, 2004).

21 M. Marinoni, ‘La natura giuridica del diritto internazionale privato’, (1913) 7 Rivista di diritto interna-zionale 457 ff.; G. Ottolenghi, Sulla funzione ed efficacia delle norme di diritto internazionale privato(Torino, Utet, 1913), at 112 ff.; H. Kelsen, Il problema della sovranità, cit., 172: ‘When a legal order . . .refers to customary or moral rules or rules of some other system . . . these rules are subordinated.’

22 G. Tedeschi, ‘Volontà privata autonoma’, (1929) 9 Rivista di filosofia del diritto 817.



of law preserves individual rights by subordinating all branches of government to thelaw, ie by preventing certain kinds of reasons from becoming relevant for administra-tive, jurisdictional and even, under a constitution-based rule of law, legislativepowers. Freedom can be guaranteed by excluding the validity of other social rules, ieby exercising authority. As a consequence of authority, if a certain behaviour is notprohibited by a norm of the legal order, then it is lawful, and if it is lawful (positivelypermitted or legally irrelevant), then no external authority can make it unlawful forthe legal order in question. What another legal system prohibits may be permitted bydomestic law, and vice versa. By virtue of authority, a morally blameworthy conduct isnot necessarily unlawful, while a lawful conduct is not necessarily morally acceptable.There are issues—religious, moral, political issues—whose decision can be acceptedonly insofar as it is not grounded on certain kind of partisan, non-neutral reasons; inother words, there are decisions capable of being accepted only to the extent that theyconstitute an exercise of a (formally established) authority.

In short, a legal order is autonomous when it claims to decide by itself which normsbelong to it, and exercises authority when it excludes the relevance of norms which donot belong to it. Together, autonomy and authority determine the ‘closure’ of the legalorder. They constitute the alpha and omega of the legal order and of a certain legalconcept of sovereignty.

As often happens, legal concepts are grounded in theology and, in theologicalterms, it can be said that autonomy (originarietà) is ‘I am the Lord, your God,’ andthat authority (esclusività) is ‘You shall have no other gods before Me’ (Deut. 5, 6–7).To use the language of fundamental principles, autonomy is a corollary of theprinciple of legality, and authority is a corollary of the principle of certainty oflaw. Indeed, to guarantee legality, a legal order must contain the criteria accordingto which membership is decided: the validity of a norm must depend, at least ulti-mately, only on the criteria laid down by the legal order. To ensure certainty of law,the legal order must have exclusive authority: only what the law has prohibited mustbe forbidden, and what the law has not prohibited must be permitted or legallyirrelevant.23

C Dynamic Nature

A legal order has a third defining characteristic, which is closely linked to the conceptsof autonomy and authority. A legal order is dynamic: it regulates how it changesover time. Other sets of norms, in contrast, are said to be static, either because they aretaken into consideration at a given point in time (such as the system of norms that arecurrently in force),24 or because they do not regulate their transformation (such asmorality).25 The need for autonomy (ie the question of legality) comes in above all,although not exclusively, for a dynamic legal order, because it must establish the

23 It should be noted here that ‘certainty’ does not mean ‘foreseeability.’ Ex ante foreseeability of legaldecisions depends on a variety of both legal and non-legal factors. Certainty, on the other hand, is relatedto the degree of independence of the legal decision from non-legal factors. Ancient judicial proceedings,with their oracles and ordeals, were unforeseeable but were just as ‘certain’—formal and implacable, onemight say—as the procedures of a modern bureaucracy can be.

24 These are the momentary legal systems discussed by J. Raz, The Concept of a Legal System. An Introduc-tion to the Theory of Legal System (Oxford, Clarendon Press, 2nd edn, 1980), at 34 ff., 187 ff.

25 H. Kelsen, Pure Theory of Law, cit., at 195 f.: ‘A system of norms, whose reason for validity and contentis deduced from a norm presupposed as a basic nom, is a static norm system.’



membership criteria for a changing set of norms. There must be pre-establishedand knowable criteria, called secondary rules26 or rules on legal production,27 to governthe transformation of the legal order and ensure that it retains its identity whenits elements change over time. So, the legal order is ‘ordered’ because it orders legalchange, it regulates such change, therefore rendering its own transformation certainand legal, autonomous and binding upon its subjects.

Autonomy, authority and dynamic nature mean that a legal recognises andmarks out—conceptualises and decides, observes and implements—a clear distinctionbetween what is inside and outside the legal order. This distinction has both theoreticaland practical implications of the utmost importance for the juridical debate on Europe.Let us see what they are.

D Theoretical Implications. Consistency and Incommensurability

The autonomy and authority of a legal order imply that the legal order is consistentand complete: there can be no legal contradictions (antinomies) or gaps (lacunae). I willlimit myself to considering the contradictions, as these are of greater interest on theissues of Community law.

Since a legal order is dynamic, its norms change over time and may therefore conflictwith each other, giving rise to internal antinomies (so-called technical antinomies). Butthe decisions on these conflicts arising from within the legal order must be based on thecriteria established by the legal order itself in order for such decisions to be consideredas legally grounded and not merely political and de facto decisions. Thus, by virtue ofits autonomy, the legal order must have entrusted a competent institution with decidingwhich norms belong to the legal order. The solution to the conflict must be authorisedby the legal order itself. Moreover, by virtue of the legal order’s authority, the conflictmust be resolved on the basis of the criteria established by the order, and only on thisbasis. Lex posterior, lex superior, lex specialis: in every case a ‘lex’ shall be applied, andnot an external and therefore irrelevant consideration.

Obviously, some may claim that the solution to a given antinomy is, as a matter offact, arbitrary, ie not based on any pre-established legal criterion. In this case, however,the one who makes such a claim is denouncing that the principles of legality and legalcertainty have not been fully implemented. Alternatively, he is holding that the conceptof legal order mystifies the reality of law, and therefore it is not appropriate to describeit and must be abandoned. For if the antinomies are not resolved by the law but bythe interpreter on the basis of his own evaluations of the case, then the law is not a legalorder in the manner intended by legal dogmatics. If the law is to be conceived as alegal order, then it must be consistent because, by virtue of its autonomy and authority(legality and certainty, self-containment and exclusivity), the antinomies are resolvedby the legal order itself, not by the interpreter. In fact, the interpreter attributes thedecision for the case to the legal order: he does not claim the paternity of the decision,and in this way he transfers responsibility for the decision elsewhere, somewhere inthe legal order, thereby reinforcing the observation that the law is per se ordered. If thelegal order is autonomous and exclusive, then the internal, technical antinomies are

26 H.L.A. Hart, The Concept of Law, cit.27 T. Perassi, Introduzione alle scienze giuridiche (Napoli, Majo, 1922), at 29: ‘the rules on legal production,

ie the norms whereby the legal order regulates the introduction, amendment and repeal of its norms.’



only apparent (or prima facie) conflicts: they can always be resolved by applying thenorms of the legal order. To exercise its authority, the legal order cannot limit itself toorder, but it must also be ordered—it must be consistent.

By contrast—and this is particularly important for our purposes—norms belongingto distinct legal orders can never be in conflict with each other: there cannot be externalantinomies, ie incompatibilities between legal orders. There can be no technical anti-nomy, no legally relevant contradiction, between Italian law and French law, betweeninternational law and domestic law, between law and morality: an unjust law maybe valid, Italian law may prohibit what French law permits, international law mayforbid what domestic law obliges to do. The norms of foreign law, international lawand morality are in themselves irrelevant for the application of domestic law: they allare autonomous norms, norms which belong to different normative orders, and theycan therefore mutually exclude each other’s authority.

But if internal antinomies are only apparent, since they can always be resolved withinthe legal order, then the legally impossible, non-technical and external antinomies arethe only real (‘all things considered’) conflicts. One may be tempted to describe them as‘tragic conflicts,’ because they are invisible to law and unresolvable by law. As the legaldogmatics said, ‘the fact that a contradiction between two sets of legal rules cannot beresolved . . . means that they belong to different legal orders.’28

In short, within this theoretical framework, given the dynamic nature of the legalorder, internal normative conflicts are possible but they are only apparent, because theycan always be resolved from within what is prima facie an inconsistent legal order.In turn, external conflicts between legal orders are unsolvable or irrelevant because,by virtue of the autonomy and authority of the legal order, the norms belonging todifferent legal orders are incommensurable. This is the principle of the relativity of legalvalues, which is the logical consequence of the closure of the legal order:29 the conflictsbetween legal orders are merely de facto. These conflicts are legally irrelevant becausethey can be identified solely from a perspective which is external to all the conflictinglegal orders. From this external, non-legal perspective, one may note that such contra-dictions are only contingently resolved in the same way by all the legal orders involved:what is valid for one legal order may not be valid for the other.

Hence, the legal orders do not ‘communicate’ with each other, they do not enterinto ‘dialogue,’ they do not reciprocally ‘balance’: they claim exclusive authority tosolve questions to which they decide to attribute relevance. They uphold a claim to themonopoly of all legally binding statements, because they are an exclusive ‘view angle’on their own legality.30 The relativity of the legal orders, being a corollary of theprinciples of legality and legal certainty, is implied by the autonomy of the legal orderand implies the autonomy of legal science. Indeed, the perspective of legal science isthought of as being totally internal to the legal order and perfectly overlapping orcoinciding with that of the legal order—otherwise it would not be ‘science,’ it would not

28 L. Ferrari Bravo, Diritto internazionale e diritto interno nella stipulazione dei trattati (Napoli, Morano,1964), at 134 note 1.

29 See for example T. Perassi, Introduzione alle scienze giuridiche, cit., 29: ‘Every proposition on the validityof a legal norm is meaningful only in relation to that given legal order on the basis of which the validityis evaluated. When norm x is said to be valid, this judgment is necessarily grounded in a given legal orderand, therefore, it is relative to that sole legal order and is worthless for any other legal order.’

30 A.E. Cammarata, ‘Il concetto del diritto e la “pluralità degli ordinamenti giuridici” ’ (1926), in Id.,Formalismo e sapere giuridico. Studi (Rocca San Casciano, Cappelli, 1962), at 140, speaks of ‘view angle’with regard to the relativity of the legal order.



know the law as the law really is. That of legal scholarship is ‘an exclusive . . . perspec-tive (the dogmatic perspective)’31 in which—the jurists say—’there is no modern juristwho does not blindly believe.’32 Thus, the legal science acknowledges the legal order asan exclusive perspective on the legality of its norms (autonomy) and of its operations ordecisions (authority).

E Practical Implications

By ‘practical implications’ I do not mean that the theory of legal order described so fardetermines, in the juridical debate on Europe, the solution to any controversial legalissues one way or the other. The theory of legal order is truly ‘pure theory,’ as it has nonormative consequences whatsoever on the decisions made by judges and a fortiori onthe decisions made by any other public authority. The theory does not adopt decisions,but it offers a conceptual framework for justifying the decisions adopted. Therefore, theexpression ‘practical implications’ of the theory of legal order refers to the set of legalarguments which become intelligible and persuasive only within the conceptual frame-work of the theory: arguments whose premises depend upon the theory of legal order,although their conclusions rest on further assumptions.

We have already encountered one of these arguments. It is the idea wherebythere are no conceptual obstacles to international law, and therefore also Communitylaw, imposing its norms directly on individuals.33 International law and Communitylaw can have direct effect as they can autonomously establish who the addresseesof their norms are. Therefore, a Community provision which imposes a duty onMember States may be interpreted so as to create a right for individuals to have thatduty performed.34

Other common arguments run along the same line. So, it is generally said thatCommunity law grounds its validity on the ‘system of the Treaties,’ ie on Communitylaw norms. By virtue of its autonomy as a legal order, only Community law can decideon its content and on its scope. Moreover, it is said that Community law must beinterpreted iuxta propria principia, with sole regard to the Treaties and the objectivesthey pursue. By virtue of the authority of Community law qua legal order, the ECJ mayonly take into consideration Community law in order to decide disputes to whichCommunity law attaches legal relevance.35 The will of the contracting parties—the

31 V. Gueli, Elementi di una dottrina dello Stato e del diritto come introduzione al diritto pubblico (Rome, Soc.ed. Foro it., 1959), at 278.

32 G. Balladore Pallieri, Le dottrine di Hans Kelsen, cit., 31.33 See supra note 14. It is worth noting that Balladore Pallieri, who in the 1930s had demonstrated the

possibility of a non-state-based legal order that addresses its norms directly to individuals, in 1961 firmlyrejected such a possibility with regard to Community law G. Balladore Pallieri, ‘Le Comunità europee egli ordinamenti interni degli Stati membri’, in Id., Saggi sulle organizzazioni internazionali (Milano,Giuffrè, 1961), 47 ff. Although his motives were undoubtedly political, his arguments were strictly dog-matic ones—a further proof that the theory of legal order is ‘pure theory’; theory does not decide.

34 ECJ Judgment of 05/02/1963, C-26/62, Van Gend en Loos (Rec. 1963, 3).35 ECJ Judgment of 04/02/1959, C-1/58, Stork (Rec. 1959, 43): ‘the High Authority is only required to apply

Community law. It is not competent to apply the national law of the Member States . . . Consequently, theHigh Authority is not empowered to examine a ground of complaint which maintains that . . . it infringedprinciples of German constitutional law’; Judgment of 15/07/1960, C-36/59, Präsident Ruhrkohlen-Verkaufsgesellschaft (Rec. 1960, 857): ‘It is not for the Court . . . to ensure that rules of internal law, evenconstitutional rules, enforced in one or other of the Member States are respected.’



original meaning of the Treaties36—and the present will of Member States’ govern-ments,37 as well as domestic legal doctrines and case law,38 have no direct bearing onCommunity law interpretation. As a general rule, Community law must be interpretedon the basis of its own criteria, which differ sharply from those familiar to internationallaw. In cases of doubt, the ECJ is the final arbiter on the meaning of Communitylaw and—in the pithy words of Antonio Tizzano— ‘the horizon of the Court is alwayssolely the Community’; within that horizon the Court must ‘always remain closed.’39

The assumption that Community law constitutes a legal order has important impli-cations in determining how conflicts between Community law and domestic law are to beresolved. These conflicts do not give rise to contradictions in a technical sense and, fromthe perspective of the Community legal order, the Community provision must alwaysprevail. As the ECJ asserted in the landmark Costa judgment of 1964, Community law‘stemming from the Treaty, [is] an independent (autonome) source of law’ and cannot,therefore, ‘because of its special and original nature, be overridden by domestic legalprovision . . . without being deprived of its character as Community law.’40 The modi-fication, disapplication or repeal of a Community law provision cannot be justifiedon domestic law grounds because any inconsistent national provision is irrelevant forCommunity law purposes. If such domestic provision has been enacted subsequent to theadoption of Community law, it will be relevant only as a breach of Community law.41

All these conclusions (on the validity of Community law, its content, the criteria tointerpret it and the way of solving conflicts with domestic law) can be understood in thelight of the incommensurability (or relativity) of legal values. It is no coincidence thatPierre Pescatore was to say that the relativity of legal orders was ‘an infinitely precious

36 ECJ Judgment of 01/06/1961, C-15/60, Simon (Rec. 1961, 225): ‘In the absence of working documentclearly ex pressing the intention of the draftsmen of a provision, the Court can base itself only on the scopeof the wording as it is and give it a meaning based on a literal and logical interpretation.’

37 On the irrelevance of this interpretative criteria, see E. Stein’s celebrated analysis ‘Lawyers, Judges, and theMaking of a Transnational Constitution’, (1981) 75 American Journal of International Law 1–27, showingthat in many of its leading cases the ECJ departed from the position taken by the Member State’sgovernments acting as plaintiffs, defendants, amici curiae or intervenors. Therefore, the governments’ willis not de facto binding upon the Court. Nor is it legally binding, given that the traditional rebus sicstantibus clause does not apply to Community law. See Judgment of 19/12/1961, C-7/61, Commission/Italy(Rec. 1961, 635): Member States ‘may not rely on either the urgency or the seriousness of a situation’ tojustify the infringement of the Treaty; Judgment of 13/11/1964, joined cases C-90/63, C-91/63, Commission/Luxembourg and Belgium (Rec. 1964, 1217): ‘even where a Community institution has failed to carry outits obligations . . . the basic concept of the Treaty requires that Member States shall not fail to carry outtheir obligations and shall not take the law into their own hands.’

38 Judgment of 06/10/1982, C-283/81, Cilfit (Rec. 1982, 3415): ‘Community law uses terminology whichis peculiar to it . . . legal concepts do not necessarily have the same meaning in Community law and inthe law of the various Member States.’ For more references to case law and legal scholarship and, seeG. Itzcovich, ‘The Interpretation of Community Law by the European Court of Justice’, (2009) 10/5German Law Journal 537–560, http://www.germanlawjournal.com/article.php?id=1106.

39 A. Tizzano ‘Art 164’, in R. Quadri, R. Monaco, A. Trabucchi (eds), Trattato istitutivo della Comunitàeconomica europea. Commentario (Milano, Giuffrè, Vol. III, 1965), at 1198.

40 Judgment of 15/07/1964, Case C-6/64, Costa (Rec. 1964, 1141). See also Judgment of 17/12/1970, CaseC-11/70, Internationale Handelsgesellschaft (Rec. 1970, 1125): ‘the validity of a Community measure or itseffect within a Member State cannot be affected by allegations that it runs counter to either fundamentalrights as formulated by the constitution of that State or the principles of a national constitutionalstructure.’

41 This is consistent with a well-established international case law, now codified by Article 27 of the ViennaConvention on the law of Treaties (1969): ‘A party may not invoke the provisions of its internal law asjustification for its failure to perform a treaty.’



doctrine’:42 the appeal of the idea of Community law’s autonomy could be appreciatedonly in the light of this principle. However, it should be noted that all these conclusionsdid not depend only on the principle of incommensurability but also on the recognitionof the autonomy of Community law: that is, on the assertion that Community lawconstituted a legal order and on the adoption of the perspective of that legal order.These ‘pro-European’ conclusions did not depend on the theory of legal order as such.The theory of legal order does not produce any normative consequences whatsoeverregarding decisions on these or other issues.

Indeed, it was possible to arrive at opposite decisions while remaining within thesame conceptual framework by simply adopting the perspective of the domestic legalorder.43 So, if we accept the autonomy and authority of the State’s legal order andassume the validity of its basic norm, we will conclude that Community law is validin the domestic legal order solely because the domestic legislator has accepted it andthat it is valid within the limits of this acceptance. We will maintain that when nationaljudges and officials apply Community law they are first of all applying domestic law, inparticular the law implementing the Treaties. This law belongs to the State’s legalorder: it is ranked within the domestic system of sources of law and must be compatiblewith the State’s constitution.44 Therefore, from this domestic perspective every conflictwith Community law is an internal conflict, an antinomy which the court may solve byapplying the usual criteria of hierarchy, competence, succession of laws in time, etc. TheECJ may of course interpret Community law as it thinks best, but the consequences ofits interpretative judgments will be determined by domestic law. From the perspectiveof national law, even the ECJ, when it is called on to make a preliminary ruling, acts asan internal institution and is therefore, at least in some respects, a domestic court.45

III Legal Pluralism. From Authority to Authoritativeness

We have seen that one consequence of the theory of legal order—and in particular ofthe concept of authority—is that there can be no antinomies between norms belongingto separate legal orders. In the event of a conflict between legal orders, it can bereframed as a conflict between norms of the same legal order (eg between domesticnorms implementing Community law and other domestic statutes), in which case itwill be held that it is only an ‘apparent’ conflict—a conflict that can be resolved on thebasis of the usual techniques for solving internal antinomies (lex posterior, lex superior,lex specialis). Or, alternatively, the conflict can be conceived of as an actual conflictbetween distinct legal orders, in which case it will be held that it is merely a de factoconflict: a purely political, legally irrelevant and legally unresolvable conflict; an exter-nal antinomy which cannot be mediated by law and which may be solved in differentways by the courts of the different legal orders (applying first of all the system of

42 P. Pescatore, L’integrazione europea, cit., 111.43 See, eg E. Spagna Musso, Costituzione rigida e fonti atipiche (Napoli, Morano, 1966), at 116 f.: ‘It is

well-known that Community law from its own perspective is supreme . . . However, given the relativenature of legal judgments, the viewpoint that matters for our line of enquiry is exclusively that of domesticlaw.’

44 M. Mazziotti, ‘Appunti sulla sentenza della Corte costituzionale riguardante la legge istitutivadell’ENEL’, (1964) 9 Giurisprudenza costituzionale 444 ff.; Id., ‘Osservazioni alla sentenza del 27 dicembre1965 n. 98’, (1965) 10 Giurisprudenza costituzionale 1329 ff.

45 G. Morelli, ‘La Corte di giustizia delle Comunità europee come giudice interno’, (1958) 41 Rivista di dirittointernazionale 3–8.



Treaties or the Constitution may lead to incompatible conclusions; the ECJ andnational constitutional courts may not necessarily reach a common solution). Buta conflict that is resolved differently by different courts cannot be said to have beenresolved, since it may arise again. It is a genuine conflict, not an apparent one.

By ‘legal pluralism’ I mean the theory which reflects on such situation.46 The theoryof legal order described so far cannot conceptualise, let alone resolve, genuine norma-tive contradictions; such external antinomies—as I have already stated—are eitherreframed as internal and merely apparent ones, or are judged to be irrelevant. Thedifference between legal pluralism and the traditional theory of legal order is that theformer rejects the idea that a legal order necessarily possesses (exclusive) authority.47 Itfollows that the legal order does not necessarily exclude the relevance of the norms thatdo not belong to it. When this does not happen, internal and external legal values ceaseto be incommensurable, and the orders stop being mutually irrelevant. In such cases, asRiccardo Monaco (another judge of the ECJ at the time of the constitutionalisation ofthe Treaties) asserted, the legal orders ‘communicate’: ‘they are no longer closed, theycommunicate more and more intensely with each other.’48 They interact, they engage ina sort of ‘dialogue,’ because the values of the one can now be compared with the valuesof the other.

To characterise a legal order that is autonomous but not exclusive, independent butnot closed, I will use the term ‘authoritative.’ In English the word ‘authoritative’has two main meanings: endowed with authority, having or arising from authority,

46 The reference here is not to anthropological or sociological pluralism but pluralism as a legal theory: a setof legal observations and arguments which first appeared in the work of Santi Romano (see next note).Hence, pluralism is attributed to legal theory, not to the law as such, as is often the case in the more recentlegal literature on Europe, which talks of ‘constitutional pluralism’ and ‘polycentricity’ to characterisethe same normative phenomena taken into account by legal pluralist theory. See, eg N. MacCormick,Questioning Sovereignty. Law, State, and Nation in the European Commonwealth (Oxford, OxfordUniversity Press, 1999), at 102 ff., 104 (pluralism as mutual recognition of ‘authority’—here‘authoritativeness’—among legal orders that neither claim nor subordinate themselves to the ‘constitu-tional supremacy’—here ‘authority’—of the other legal orders); M. Kumm, ‘The Jurisprudence of Con-stitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty’,(2005) 11/3 European Law Journal 262–307, 266 f. (in terms of ‘conceptual possibility of legally irrecon-cilable conflict’, which can nonetheless be avoided ‘in practice’); N.W. Barber, ‘Legal Pluralism and theEuropean Union’, (2006) 12/3 European Law Journal 306–329 (a legal system that contains inconsistentrules of recognition and therefore conflicts that cannot be legally resolved from within the system);see however J. Baquero Cruz, ‘The Legacy of the Maastricht-Urteil and the Pluralist Movement’, (2008)14/4 European Law Journal 389–422, 412 ff., using the expression not to denote a feature of the legalsystem but a trend in legal scholarship that he criticises, and N. Krisch, Beyond Constitutionalism. ThePluralist Structure of Postnational Law (Oxford, Oxford University Press, 2010), 23 f., 69–105, using‘pluralism’ to indicate both a structural feature of postnational law and a normative theory (a ‘vision’) thathe endorses and opposes to constitutionalism: ‘In pluralism, there is no common legal point of referenceto appeal to for resolving disagreement; conflicts are solved through convergence, mutualaccomodation—or not at all’ (ibid, 69).

47 The locus classicus of this position is to be found in the added notes to the second edition of SantiRomano’s L’odinamento giuridico (Firenze, Sansoni, 1946, 119 note 95 bis): ‘The principle that everyautonomous (originario) legal order is always exclusive, must be understood as meaning that it may, butnot that it must necessarily deny the legal validity of all other orders.’ Already in the first 1918 edition,however, Romano had developed a theory of conflicts of law in private international law which wasinconsistent with the principle of exclusivity.

48 R. Monaco, ‘Relazione introduttiva alle giornate europee di Perugia’, (1976) 49 Annuario di dirittocomparato 11, stating that ‘plurality is accompanied by communication among legal orders,’ and that‘a characteristic element of the exclusivity and separation of legal orders is their gradual adjustment to theneeds of communicability.’



imperative (eg authoritative decree, source, etc.) and endowed with authoritativeness,of acknowledged accuracy or excellence, reliable (eg authoritative account, edition,etc.). I will use the term in this latter meaning. Authoritativeness can be said to liehalfway between authority and persuasion.

Unlike persuasion, which is based on the sharing of substantive reasons, authorita-tiveness, like authority, is based on a formal grounding of validity, on a formalprinciple of legitimacy. In fact, authoritativeness is expressed by ex auctoritate argu-ments, and so when one speaks of an authoritative jurist or court supporting a certainconclusion, these arguments are cogent regardless of their content. Analogously, softlaw provisions are not binding, but still they are more or less authoritative by virtue oftheir source.

Moreover, unlike authority and like persuasion, authoritativeness is a matter ofdegree. Authoritativeness is a prima facie authority, a defeasible, non-exclusive author-ity. In legal reasoning, authoritativeness implies only the duty to take into consider-ation a reason which is not necessarily conclusive, a point of view which is preciselythis—a point of view, amongst others, and not an exclusive, all-or-nothing bindingperspective on the law.49

In European juridical discourse, the authoritativeness of autonomous legal ordersand the consequent duty to take them all into serious consideration have notabletheoretical and practical implications. I will begin by looking at the practical implica-tions, and then move on to discuss the theoretical implications.

A Practical Implications

As the State’s legal order ceases to exercise exclusive authority, it can be acknowledgedthat Community law has direct effect: some of its norms can be applied directly withinthe Member States, without there being need for national transformation, incorpora-tion, adaptation, renvoi. These norms can be applied ‘as such,’ as Community law, andthus they are binding within the national order but are not part of its system of sources.At least in certain respects, they remain external norms, just like foreign law remainsexternal law when it is made applicable by international private law.50

The transition from authority to authoritativeness also means that any conflictbetween the norms of the two legal orders does not lead to the annulment or repeal,ie the definitive and conclusive removal of one of the conflicting norms from thelegal order, but may be resolved through the case-by-case derogation of one of them.The conflict is still an external antinomy, whose solution, by virtue of the persistentautonomy of the legal orders, cannot have consequences on the content of the legalorders. Nevertheless, if the authority (exclusivity) of the legal order has fade away, thistype of conflict is by all means legally relevant and resolvable.

49 A useful theoretical insight into the subject is F. Schauer, ‘Authority and Authorities’, (2008) 94 VirginiaLaw Review 1931–1961.

50 The determination of the scope of these ‘certain respects’ is a recurring legal question. Indeed, in certainrespects, Community law must also be observed as internal law, eg a law whose infringement would justifythe annulment of the judgment by the Court of Cassation, a law to which the principle curia novit iuracould apply, a law that the Constitutional Court could use as parameter in evaluating the violation ofthe constitutional principle of equality, etc. Sometimes Community law must be regarded as external,sometimes it must be regarded as internal: in pluralist legal scholarship this clearly contributes to furtherbreaking down the distinction between internal and external to the legal order.



The conflict might not always be resolved in the same manner by all the legal ordersinvolved, given that every legal order continues to be autonomous, but with respectto the situation described—or better ignored—by the theory of legal order, there is nowa key difference: the external antinomy can be conceptualised by theory and can beresolved in practice. Indeed, the practical solution is the disapplication in the concretecase of one of the conflicting norms which continues nevertheless to be valid51—Anwendungsvorrang instead of Geltungsvorrang, says German legal scholarship.52 Byvirtue of the competing authoritativeness, we are left solely with the duty to ‘take intoconsideration’ certain sets of reasons. Therefore, the conflicts between such reasons canbe resolved ad hoc, on a case by case basis, without leading to permanent normativeconsequences such as repeal or annulment of the incompatible legal values.

True enough, conflicts between Community law and domestic law are not necessarilyresolved through ad hoc decisions. A well established body of case law may develop.This type of conflict may be resolved using criteria which recall, in many respects, thoseavailable within a legal order to solve internal antinomies. But, as long as the legalorders are conceptualised as autonomous and separate, there will always be some scopefor flexible, case by case decisions: for instance, the national court may hold that, inview of the circumstances of the case, some legal principle protected by the domesticconstitution is more authoritative and therefore should prevail.53 In such a case, Com-munity law is not annulled or repealed but simply disapplied or suspended by virtue ofa more authoritative norm, a prevailing principle. As there is no fixed, non-defeasablerule of precedence between Community law and domestic law, the relationship betweenthe conflicting legal orders (and/or principles) is that of a floating, shifting, mobilehierarchy.54

Something similar occurs also from the Community standpoint. The ECJ case lawbegins to take into consideration, as general principles of Community law, certainprinciples of national and international law—the principles stemming from constitu-tional traditions common to Member States and those laid down by the most impor-tant international conventions.55 Acceptance of the principles is selective, as it is basedon their authoritativeness in relation to the circumstances of the case. Obviously, heretoo a stable case law may develop: the decision to accept a certain legal principle may

51 Italian Constitutional Court, Judgment no. 170 of 08/06/1984, (1984) 29 Giurisprudenza costituzionaleI-1098. In Community case law, see ECJ Judgment of 09/03/1978, Case C-106/77, Simmenthal (Rec. 1978,629): ‘a national court is under a duty to give full effect to those provisions [of Community law], ifnecessary refusing of its own motion to apply any conflicting provision of national legislation, even ifadopted subsequently, and it is not necessary for the court to request or await the prior setting aside ofsuch provision by legislative or other constitutional means.’

52 G. Hoffmann, ‘Das Verhältnis des Rechts der Europäischen Gemeinschaften zum Recht der Mitglied-staaten’, (1967) 20 Die öffentliche Verwaltung 433 ff., at 439–440; I. Pernice, Das Verhältnis europäischerzu nationalen Gerichten im europäischen Verfassungsverbund (Berlin, De Gruyter Recht, 2006), at 24;M. Nettesheim, ‘EU-Recht und nationales Verfassungsrecht’, in J. Schwarze, P.-C. Müller-Graff (eds),XX. FIDE-Kongress. Die deutschen Landesberichte, Beiheft 1/2004, ‘Europarecht’, 7–144, 74.

53 Italian Constitutional Court Judgment no. 183 of 27/12/1973, (1974) 19 Giurisprudenza costituzionale2401; Judgment no. 170 of 08/06/1984, (1984) 29 Giurisprudenza costituzionale I-1098; Judgment no. 232of 21/04/1989, (1989) 34 Giurisprudenza costituzionale I-1001: ‘fundamental principles of the constitu-tional order and inviolable rights of the human person.’

54 The expression ‘mobile hierarchy’ is borrowed from R. Guastini, Il diritto come linguaggio (Torino,Giappichelli, 2nd edn, 2006), at 116, who uses it to characterise the balancing of principles.

55 Starting with ECJ Judgment of 12/11/1969, Case C-29/69, Stauder (Rec. 1969, 419); Judgment of 17/12/1970, Case C-11/70, Internationale Handelsgesellschaft (Rec. 1970, 1125); Judgment of 14/05/1974, CaseC-4/73 Nold (Rec. 1974, 491).



not be made on a case-by-case basis. Moreover, these principles are upheld as ‘generalprinciples of Community law,’ and it may therefore be claimed that a sort of transpo-sition or renvoi has occurred and that that situation is fully compatible with thetraditional theory of legal order. Nonetheless, a plausible alternative account of theECJ’s case law can be provided within the framework of legal pluralism: one has simplyto say that the ECJ ‘opens up’ the Community legal order to reasons belonging todifferent legal orders, or that the Community legal order partially renounces to itsclaim to exclusive authority, adopts new principles and starts pursuing other valuesthan mere legality and certainty.56

Just as the ECJ in interpreting Community law takes into consideration nationallaw, so it is said that national courts must take into consideration Community lawwhen interpreting domestic law: where possible, they must apply a norm in such a wayas to conform with Community law.57 Once the notion of a legal order’s authorityis cast aside, comparative evaluations of this kind become fully legitimate.58 The factthat they occur frequently can be interpreted in pluralist terms as a transition fromauthority to authoritativeness: every norm is defeasible, in addition to norms thereare principles, in addition to rules there are standards; the interpretation of law mustopen up to a variety of competing considerations, and legal reasoning must growmore complex and multifaceted.59

B Theoretical Implications. Ethical Turn and Legal Dis-order

The switch away from authority to authoritativeness, from the theory of legal orderto legal pluralism, also has considerable theoretical implications. The concept ofincommensurability is overturned and, as we have seen, so is its practice. If authorityno longer excludes the relevance of other authorities, if it becomes authoritativeness,then the various claims to authority and the divergent point of view on legality have allto be balanced on the basis of the substantive soundness of their reasons. A formalprinciple of authority will no longer be sufficient. The weight of an authoritative sourcemust always be compared and balanced with other equally authoritative and possiblybetter sources; instead of being incommensurable, the norms of separate legal orderswill be commensurated, placed in relation to each other and balanced. Formal, exclu-

56 See, eg J.H.H. Weiler, ‘Eurocracy and Distrust. Some Questions Concerning the Role of the EuropeanCourt of Justice in the Protection of Fundamental Human Rights within the Legal Order of the EuropeanCommunities’, (1986) 61 Washington Law Review 1103–1142, 1118 f.: ‘No longer did the Court see itselfas an international tribunal determined to preserve the autonomy of the system it oversaw but rather aconstitutional court of a supranational order determined to preserve the integrity, unity and uniformity ofthe system it had evolved’ (author’s emphasis).

57 ECJ Judgment of 10/04/1984, Von Colson (Rec. 1984, 1891); Judgment of 13/11/1990, Case C-106/89,Marleasing (Rec. 1990, I-4135).

58 See G. Betlem, ‘The Doctrine of Consistent Interpretation—Managing Legal Uncertainty’, (2002)20/3 Oxford Journal of Legal Studies 397–418; M. Amstutz, ‘In-between Worlds: Marleasing and theEmergence of Interlegality in Legal Reasoning’, (2005) 11/6 European Law Journal 766–784.

59 The use of comparative law not only produces complexity (new arguments, observations and informationbecome possible), but also redundancy and uniformity, as can be seen in the practice of interjudicialdialogue. On legal argumentation and redundancy, see M. Shapiro, ‘Toward a Theory of “Stare Decisis”’,(1972) 1/1 Journal of Legal Studies 125–134. On the use of comparative law, see S. Choudry, ‘Globalizationin Search of Justification: Towards a Theory of Comparative Constitutional Interpretation’, (1999) 74Indiana Law Journal 819–892; C. McCrudden, ‘A Common Law of Human Rights? Transnational JudicialConversations on Constitutional Rights’, (2000) 20/4 Oxford Journal of Legal Studies 499–532.



sively internal legal arguments no longer suffice, and therefore it is necessary to seeksubstantive principles that are common to all the conflicting legal orders or thatovercome all of them. Therefore legal reasoning, as well as legal scholarship, tends tobecome more ethically inspired. The judicial discourse undergoes a normative turn and,as we will see in the next section, looks to the ethos of fundamental rights for a newprinciple of legitimacy.

Another theoretical consequence of the authoritativeness of distinct and competingclaims to authority is the confusion, the ‘legal dis-order’ that ensues from the need to takethem all seriously.60 Since external reasons must be evaluated in order to decide this kindof conflict, the legal order ceases to regulate in an exclusive way its transformation andapplication over time. It no longer makes much sense to conceptualise the legal order asbeing a consistent system of norms: at the most, it seems to be a precarious equilibrium,on the edge of a void, between momentarily converging authorities.61 Thus, consistencyis projected outside the legal order, in the ‘principles of political morality’ and in the‘common values’—sort of Byzantine sky that can no longer hide the fact that the law ofintegration has stopped to regulate its own transformation.

Today’s jurists are increasingly using the term ‘legal space’ to describe this kindof law that is no longer determined from within and to whose disordering severaldistinct authorities concur62—a new kind of law that can no more be conceived of asbeing a legal order, as it is pluralist (rather than exclusive), contradictory (rather thanconsistent), unfinished (rather than complete). Jurists have begun to talk of ‘compe-tition’ between legal orders: According to some authors, competition maximises effi-ciency, according to others it lowers the standard of rights protection, but in bothcases it implies the ending of the exclusivity of State’s legal order and the ever-increasing use of comparative evaluations and arguments by private actors as well asby domestic courts.63

In response to the deficiencies of the theory of legal order, jurists have borrowed theconcept of multilevel governance64 from political science in order to conceive a non-

60 On European integration as a ‘legal disordering process’, see G. Itzcovich, ‘Integrazione giuridica.Unation b’analisi concettuale’, (2005) 3 Diritto pubblico 749–786, 781 ff. The concept has been recentlyused in a similar manner in relation to legal pluralism by N. Walker, ‘Beyond Boundary Disputes andBasic Grids: Mapping the Global Disorder of Normative Orders’, (2008) 6/3–4 International Journalof Constitutional Law 373–396, 391: ‘[P]luralism proposes a kind of “non-order” of orders, in whichno general steering mechanism is available to frame the relations between orders . . . it is important toconceptualize and understand the emerging configuration as a (candidate-neutral) disorder of orders.’

61 N. MacCormick, ‘The Maastricht-Urteil: Sovereignty Now’, (1995) 1 European Law Journal 259–266, 265:‘[the] acceptance of a pluralistic conception of legal systems entails acknowledging that not all legalproblems can be solved legally.’

62 C. Harding, ‘The Identity of European Law: Mapping Out the European Legal Space’, (2000)6/2 European Law Journal 128–147; S. Cassese, Lo spazio giuridico globale (Roma-Bari, Laterza, 2003);M.P. Chiti, Mutazioni del diritto pubblico nello spazio giuridico europeo (Bologna, Clueb, 2003); G. dellaCananea, L’Unione europea. Un ordinamento composito (Roma-Bari, Laterza, 2003).

63 There is a growing body of literature on jurisdictional competition (competition of legal orders).For references and insights, see generally A. Zoppini (ed.), La concorrenza tra ordinamenti giuridici(Roma-Bari, Laterza, 2004); N. Lavranos, Jurisdictional Competition: Selected Cases in International andEuropean Law (Groningen, Europa Law Publishing, 2009).

64 The idea of multilevel governance, borrowed from political science and developed around some concep-tual distinctions—governance/government, cooperation/command, communication/coercion—has beenapplied to European integration theory by I. Pernice, ‘Multilevel Constitutionalism and the Treaty ofAmsterdam: European Constitution-making Revisited?’ (1999) 36 Common Market Law Review 703 ff.;I. Pernice, F. Mayer, ‘De la constitution composée de l’Europe’, (2000) 36 Révue trimestrelle de droit



hierarchical decision-making structure in which private and public actors operateautonomously; a governance which differs from the government of the State because itlacks a sovereign authority. So, according to a pluralist conception of law, whenauthority falls away, a plurality of institutions endowed with various authoritativenessand based on different forms of legitimacy (political representation, technical expertise,economic influence, etc.) cooperate and may enter into conflict within a dis-ordered legalspace.

C Problems of Legal Pluralism

Balancing rather than incommensurability, legal space rather than legal order, multi-level governance rather than State, are all concepts belonging to legal pluralism. Yet inthe long run, legal pluralism faces some practical as well as theoretical difficulties. Legalpluralism emerged for the purpose of reflecting on the dynamics of legal integrationbeyond the constraints of the old theory of legal order. When compared with thattheory, however, legal pluralism observes law in a way which paradoxically is static. Ifan irreducible plurality of autonomous authorities produces a legal disorder thatevolves unpredictably, then legal pluralism, unlike the theory of legal order, cannotconceive of legal change as a change that always occurs legally—an orderly legaldynamics. The order of this plurality, the unity of the multiplicity of competing lawsand claims cannot be conceptualised within a pluralist theory and cannot be ordered—produced, prescribed, decided—by the theory.

Of course, legal conflicts, unlike order and coherence, can be conceptualised bypluralist theory and may also be resolved by judicial practice. We have seen that this isthe main practical achievement of legal pluralism. Nevertheless, legal conflicts can ariseonce again and, when this happens, we can only say that their solution is the productof a discretionary choice on the part of the adjudicator among incompatible claims toauthority. In terms of the theory of legal order, this means that there is no certainty andthere is no legality (who decides as to the authority of the institution deciding on theconflict? on the basis of what criteria?)—there is no legal order. But if there is neitherlegality, nor certainty, nor order, is there perhaps no longer law? Not surprisingly thissituation, a direct consequence of the crisis of State sovereignty, has led jurists todenounce the dangers of ‘legal nihilism.’65

IV The Discourse on Fundamental Principles

Constitutional principles and their plurality . . . do not produce a static uniformity, but a unity which isto be achieved dynamically. The principles come into play through their combinatory possibilities and

européen 623–647. See G. Martinico, Lo spirito polemico del diritto europeo (Roma, Aracne, 2011), 57 ff.on the concept of multilevel governance in EU scholarship.

65 N. Irti, Nichilismo giuridico (Roma-Bari, Laterza, 2004), on the ‘nihilistic essence’ of decodification: ‘thatdenial of any criterion of unity, that surrender to the human will and to the randomness of becomingthrows norms into a never-ending movement’ (ibid, 8); ‘By destroying the totality of the system and theunity of its conceptual representation, legislative fragmentation produces disappointment and anguish’(ibid, 101 f.). But see also N. MacCormick, Questioning Sovereignty, cit., 102: ‘The interlocking of legalsystem, with mutual recognition of each other’s validity, but with different grounds for that recognition,poses a profound challenge to our understanding of law and legal system . . . a challenge full of profoundand potentially dangerous implications.’



legal science faces a challenge . . . which requires supple, unusual conceptual tools . . . the main one being“balancing”.

G. Zagrebelsky66

Legal pluralism conceptualises and, to some extent, handles in concreto and preservesin abstracto conflicts that are theoretically unresolvable, ie non-technical, externalantinomies between integrating legal orders. As legal orders integrate, relations andcontacts between them increase and so do the occasions of conflict. In the long run,mutual indifference and incommensurability—corollaries of the autonomy and author-ity of the legal order—may provide an unsatisfactory answer to the many questions oflegal integration: there must be a minimum of legality and certainty in the applicationof Community law. On the other hand, the creation of a legal meta-order may beunachievable in practice and not very attractive in theory. If there is no politicalorganisation comparable to the State, then the normative conflicts that disrupt thedisordered legal space will persist as real antinomies, ie as contradictions which can beresolved in different ways by different authorities. Perhaps this is a good thing: so longas there is not a single common political community, a deficit of legality and legalcertainty may be acceptable.

However, while legal pluralism can observe and maintain this situation, it cannotconceptualise it as an ordered process—a dynamic of legal change. The discourse ofrights and fundamental principles intervenes precisely in this issue.67 Unlike the plural-ism of legal orders, the new pluralism of principles allows integration to be conceptua-lised as an ordered process, and this happens in two ways.

First, legal integration can be conceived as a process devised in order to achievecertain shared objectives and values—a common market, ‘peace and justice amongnations’ (Article 11 Italian Const.), cooperation among States, equal treatment of theircitizens, ‘an ever closer union among the peoples of Europe,’ respect for fundamentalrights, etc.—thus, the order results from the substantive goals of the process. Second,legal integration can be conceived as a process which is ordered and balanced by meansof an institutional dialogue on the protection of rights and the implementation offundamental principles—thus, an order results from the limits and the tools of theprocess.68

The transition from pluralism of legal orders to pluralism of principles means that inthe juridical discourse on Europe, the legal order ceases to be autonomous: it no longergrounds on itself its claim to authority and, since it has neither autonomy nor

66 G. Zagrebelsky, ‘Diritto per: valori, principi o regole? (a proposito della dottrina dei principi di RonaldDworkin)’, (2002) 31 Quaderni fiorentini per la storia del pensiero giuridico moderno 865–897, 880.

67 The literature on the protection of fundamental rights and European integration is enormous. See, however,J.H.H. Weiler, The Jurisprudence of Human Rights in The European Union. Integration and Disintegration,Values and Processes, Jean Monnet Working Paper no. 2/96, http://www.jeanmonnetprogram.org/papers/96/9602.html, who contrasts the particularism of ‘fundamental boundaries,’ ie limits of jurisdiction whichcan be assimilated to the legality/certainty, autonomy/authority of the legal order, with the universalism ofhuman rights, and emphasises the polemogenous nature of the discourse on fundamental rights.

68 On judicial dialogue, see A.-M. Slaughter, ‘A Typology of Transjudicial Communication’, (1994) 29University of Richmond Law Review 99–137; Id., ‘A Global Community of Courts’, (2003) 44 HarvardJournal of International Law 191–219; A. Stone Sweet, Governing with Judges. Constitutional Politicsin Europe (Oxford, Oxford University Press, 2000), at esp. 153 ff., 165 ff.; A. Rosas, ‘The EuropeanCourt of Justice in Context: Forms and Patterns of Judicial Dialogue’, (2007) 1/2 European Journal ofLegal Studies available at http://www.ejls.eu/2/24UK.htm. On different (as ‘hidden’) dialogues, seeG. Martinico, ‘Judging in the Multilevel Legal Order: Exploring The Techniques Of “Hidden Dialogue”’,(2010), 21 King’s Law Journal 257–281.



authority, in a certain sense it stops being an ‘order.’69 Juridical discourse onEurope has always been hospitable to natural law themes now it begins (or perhapsreturns70) to say that law, be it Community law or national law, is valid because itis aimed at implementing certain fundamental rights and principles. Every publicauthority, regardless of its position within any legal order, has an absolute duty,prevailing over all other considerations, to protect these rights and implement theseprinciples.71

There may be divergent views as to what is a valid fundamental principle and, in caseof conflict, there may be divergent views on which contradictory claim should prevailas ‘the more fundamental one.’ But this is precisely the reason why the decision on theconflict of principles generally provides a partial solution to the antinomy, a solutionwhich is valid only for the case at hand. Indeed, the decision on the conflict must bebased on a case-sensitive balancing of all specific relevant circumstances:72 for it to beacceptable to the other authorities, such a decision must always be defeasible in the faceof different circumstances and points of view.73

Moreover, as the decision must take into consideration all the relevant aspects ofthe case and must aim to be acceptable also to other jurisdictions, it appears that thedecision no more attempts to define a clear-cut dividing line (grounded/ungrounded,lawful/unlawful, relevant/irrelevant) between conflicting claims. The decision almostno longer seeks to be ‘certain and legal.’ Rather, it is intended as a reasonable com-municative proposal: not as a decision requiring obedience but as a set of argumentrequiring consideration in a dialogue on the common values. As the legal order loses itsautonomy, as authority dissolves into authoritativeness, the unity of the (dis)integrat-ing legal space is conceptualised in terms of reasonableness rather than in terms ofsovereignty.

While legal pluralism had maintained the theory of legal order and had introducedone small but important correction—the refusal of the legal order’s authority—now,

69 According to J.H.H. Weiler, U. R. Haltern, The Autonomy of the Community Legal Order—Through theLooking Glass, Jean Monnet Working Paper no. 10/96, at http://www.jeanmonnetprogram.org/papers/96/9610.html, it is characteristic of today’s ‘neo-constitutionalism’ that the boundaries between State andCommunity legal orders ‘should be a matter of constitutional conversation, not a constitutional dictate’:‘The constitutional discourse in Europe must be conceived as a conversation of many actors in a consti-tutional interpretative community, rather than a hierarchical structure with the ECJ at the top.’

70 It ‘returns’ because this is a classical foundation of State’s authority, from Locke onwards. What is new isthat this political philosophy acquires immediate practical importance for legal science.

71 See, eg C. Mirabelli, ‘Preliminary Reflections on Fundamental Rights as the Basis of a CommonEuropean Law’, in B. Markesinis (ed.), The Clifford Chance Millenium Lectures: The Coming Together ofthe Common Law and the Civil Law (Oxford, Hart, 2000), at 225–237, 233: fundamental rights are normswhose validity does not depend on belonging to a specific legal order. They are ‘metapositive’ norms which‘demand compliance also from authorities which deny their validity.’

72 One among many possible quotes. According to J.H.H. Weiler, Eurocracy and Distrust, cit., 1132,European judicial review as well as domestic constitutional justice today operate by means of balancingtests and not on the basis of absolute or hierarchically ordered principles: ‘One does not have to be a legalrealist to accept that it is quite possible, and this does not seem to worry the Court [of Justice] unduly, thatanother tribunal, seised with the same issues, may reach a different outcome.’

73 On balancing test, see R. Bin, Diritti e argomenti. Il bilanciamento degli interessi nella giurisprudenzacostituzionale (Milano, Giuffrè, 1992); G. Pino, ‘Conflitto e bilanciamento tra diritti fondamentali.Una mappa dei problemi’, (2007) 28 Ragion pratica 219–276; S. Tsakyrakis, Proportionality: An Assault onHuman Rights? Jean Monnet Working Paper no. 09/08 at http://www.jeanmonnetprogram.org/papers/08/080901.html; A. Stone Sweet, J. Mathews, ‘Proportionality Balancing and Global Constitutionalism’,(2008) 47 Columbia Journal of Transnational Law 68–149.



the discourse of fundamental principles maintains legal pluralism but introduces animportant change by rejecting the idea of the autonomy of the legal order. The legalorder, so to speak, is not enough for itself; its claim to authority needs to be supple-mented by fundamental rights and principles, which are at the same time internal andexternal to the legal order.

Indeed, they are internal because they are legal norms which can be used inlegal reasoning and be applied by judges. Fundamental principles and rights are not amerely ethical and political entity which, from the outside, found and limit the politicalobligation of the citizen and the claim to authority of the legal order. They are by allaccount legal concepts which are part of the daily management of the legal system.Nevertheless, fundamental principles and rights are also external to the legal orderbecause they ground it rather than being grounded by it. According to NorbertoBobbio, the pressing need to protect the fundamental rights makes the very problem oftheir foundation irrelevant.74 They must be recognised by the legal order—and thisimperative is both internal (constitutional) and external (ethical) to the legal order.

Moreover, under international law the violation of these basic principles (humanrights) justifies an external (international) interference in the municipal legal order.75

They tend to form a common transnational law, a law that is both domestic andinternational, as ‘the general principles of law recognised by civilised nations’ in 19th-century jurisprudence, later, ‘the generally recognised norms of international law’ andthe norms of jus cogens, which are non-derogable and binding also on States that do notrecognise them.

Finally, and most importantly, the conflicts between fundamental rights and prin-ciples are both internal and external. They are internal antinomies, ie incompatibilitiesbetween valid norms of the legal order, but they are also conflicts of values, whichrequire a moral understanding of the issue on the part of the adjudicator and can besettled only be means of an ethical as well as legal decision.76

A Consequences on European Constitutionalism

As a result, the discourse on fundamental rights expresses the crisis of the distinctionbetween internal and external which, as we have seen, was central to the theory of legalorder. That this distinction has entered into crisis in practice as well as in juridicaldiscourse is apparent: in the second half of the 20th century, during the Cold War andin the age of globalisation, it no longer makes much sense to say that the legal ordergrounds on itself its claim to authority and decides autonomously on the scope of itsjurisdiction and the content of its norms. This probably made little sense in the caseof States that emerged after the Second World War. With reference to the EuropeanCommunity, however, this description of the law as an autonomous and authoritativenormative order has never been fully convincing.

74 N. Bobbio, ‘Sul fondamento dei diritti dell’uomo’ (1964), in Id., (ed.), L’età dei diritti (Torino, Einaudi,1990), at 16.

75 J. Rawls, The Law of Peoples (Cambridge, Harvard University Press, 1999), at 79: ‘Human rights . . . specifylimits to a regime’s internal autonomy’; J. Raz in Human Rights Without Foundations, Oxford Legal StudiesResearch Paper no. 14/2007, 9, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=999874: ‘rights whichset limits to the sovereignty of State, in that their actual or anticipated violation is a (defeasible) reason fortaking action against the violator in the international arena.’

76 R. Guastini, Il diritto come linguaggio. Lezioni (Torino, Giappichelli, 2nd edn, 2006), at 97.



It is true that the idea of a European Constitution—and the correlated ideas ofautonomy and authority, legality and certainty of Community law—could simply beassumed or postulated, and this is precisely what jurists did when, in the 1950s and1960s, they proclaimed the autonomy of the Community legal order and theorised theexistence of a European Constitution.77 However, the Community did not have acoercive apparatus, an autonomous and self-sufficient institutional basis, and it reliedtotally on cooperation from the Member States, on their continuing will to comply withCommunity law and to contribute to its development. Therefore, according to Com-munity law scholarship of the 1950s and 1960s, the existence of a European Constitu-tion could not be merely presupposed but had to be consciously acknowledged,pursued, promoted by undertaking a moral and political commitment towards theconstruction of Europe.78 The decision to adopt a Community rather than a StateGrundnorm was understood as a moral decision, as a political choice in favour ofEurope.79 It was a case of pursuing a constitutional ideal, as the European Constitutionwas, those jurists said, essentially a project, a constitution in fieri.80 The Constitutionwas not as much a fundamental ‘ought’ in the Kelsenian fashion, as a fundamental‘want-to-be.’ For those jurists, it expressed the European Communities’ ambition ofbecoming a federal State.

From this perspective, more than the formal features of the Community, what gainedutmost importance was its telos81—the objectives of the Treaties. And these objectivescould easily be thought of as fundamental principles of Community law: the creation ofa common market and an ever closer union among the peoples of Europe required thefull uniformity and efficacy of Community law, and the principle of certainty of lawshowed itself to be a functional prerequisite of economic and political integration. Asa result, the constitutional nature of the Community came to depend on a set of

77 Among many, see, eg P. Reuter, ‘Aspects de la Communauté économique européenne’, (1958) 1 Revue duMarché Commun 6–14, 161–168, 310–316, 163: ‘The treaties establishing international organisations at acertain point become, as practice acknowledges, “constitutional statutes” ’; W. Hallstein, ‘The EECCommission: A New Factor in International Life’, (1965) 14 International and Comparative Law Quarterly727–741, 729: ‘As a citizen of a federal republic, there is no doubt in my mind about the nature of thisConstitution. Indeed we can find in the Treaty of Rome many characteristics that are similar to the onesof the Constitution of a federal State.’

78 See, eg A.M.V. Valenti ‘Le giornate di Perugia e le prospettive di sviluppo del diritto comunitario edell’Europa’, (1973) 46 Annuario di diritto comparato 116: the organisation of conferences and studymeetings on Community law is not limited ‘to strictly academic issues, but necessarily and directly affectsthe very purpose of European propaganda.’

79 See, eg R. Monaco, Diritto delle Comunità europee e diritto interno (Milano, Giuffrè, 1967), at 228: ‘Thejurist must fully adopt the Community perspective if he wants to achieve well-balanced results, whichcorrespond as much as possible to an organic and autonomous vision of the Community legal life . . . Forour part we have tried to adopt the Community perspective. This explains why we have accepted varioussolutions which, if considered from the same Community spirit which we are possessed with, may beshared, while if considered from another spirit may generate doubts and opposition.’

80 P. Reuter, Aspects de la Communauté, cit., esp. 161: ‘As a treaty it [the EEC Treaty] only establishes thegeneral principles and constitutes what one would be tempted to call a “framework treaty” (traité-cadre)’;C.F. Ophüls, ‘Die europäische Gemeinschaftsverträge als Planungsverfassungen’, in J.H. Keiser (ed.),Planung (Baden-Baden, Nomos, Vol. I, 1965), at 229 ff.: the EC Treaties as a ‘plan-constitution’; P. Hay,Federalism and Supranational Organizations. Patterns for new Legal Structures (Urbana, University ofIllinois Press, 1966): federalism as a dynamic tendency of the Community.

81 P. Pescatore, ‘Les objectifs de la Communauté européenne comme principes d’interprétation dans lajurisprudence de la Cour de Justice’, Miscellanea W. J. Ganshof van der Meersch (Bruxelles-Paris,Bruylant-LGDJ, Vol. II, 1972), at 325–363.



principles of law which could be gradually achieved to a greater or lesser extent andwhich required moral commitment and acknowledgement of the political project. Thevalidity of the Community Constitution had to be recognised ‘in principle.’ It could notsimply be presupposed, as it raised fundamental legal questions which could be dealtwith in terms of conflicts between equally fundamental legal principles.

B Implications for State Constitutionalism

Even from the viewpoint of domestic law, it is unlikely that fundamental questions likethe conflict between legal orders could be solved by simply using the ‘sovereignist’vocabulary of the autonomy and authority of State law. Of course, the claim toauthority of Community law could and should be based on constitutional legality, andhence derived from the autonomy of the State legal order, but this did not rule out thediscourse on fundamental principles. On the contrary, it allowed identifying the claimto authority of Community law with a constitutional principle of ‘openness’ to inter-national and Community law82—a principle which, in the event of a conflict, wouldhave to be balanced against other constitutional principles.

As Giuseppe Barile was to write back in 1966, the State legal order was openingup and making room not only for Community law but also for a ‘spontaneous trans-national law’: an emerging global law, based on judicial precedents and consisting ofprinciples which draw their validity from their content and from the spontaneousacceptance by the jurists:

. . . spontaneous legal principles, which can be determined only in concreto, without any limitationbased on form or source, by making reference to historical, political, moral or legal facts which, at agiven historical point in time, assume such a binding force for the conscience of the community of theState that they must be enforced, no matter what the system of rules prescribes.83

If the ‘spontaneous legal principles’ are to be enforced ‘no matter what the system ofrules prescribes’, then it is those principles, and not the legal order (the ‘system of rules’)that provides the supreme criterion of validity. When in legal pluralism the authority ofthe legal order began to decline into authoritativeness, the old idea of autonomy of thelegal order (legality) was supplemented and transformed by the idea of a necessarysubstantive foundation for the law. Thus, the conflict between legal orders—between autonomous and therefore incommensurable claims to authority—could be

82 In 1966, G. Barile, ‘Limiti all’attuazione dei diritti europei e stranieri nell’ambito delle comunità statali’,(1966) 12 Comunicazioni e studi 91–113, 99, already speaks of a constitutional principle of openness. InGerman legal scholarship, see eg C. Tomuschat, ‘Die staatsrechtliche Entscheidung für die internationaleOffenheit’, in J. Isensee, P. Kirchhof (eds), Handbuch des Staatsrechts (Heidelberg, Müller, Vol. VII, 1992),at 483–524; C. Lebeck, ‘National Constitutionalism, Openness to International Law and the PragmaticLimits of European Integration—European Law in the German Constitutional Court from EEC tothe PJCC’, (2006) 7/11 German Law Journal 907–945, at http://www.germanlawjournal.com/index.php?pageID=11&artID=767.

83 G. Barile, Limiti all’attuazione, cit., 105 s. This is obviously true also for the Community legal order.Eighteen years before the ECJ judgment in the Nold case, Barile had already proposed the standard of‘common constitutional traditions’ (‘factors which tend to be common to domestic legal systems ofmember States’) for constitutionalising the Community legal order: a ‘spontaneous international law,’which the ECJ ‘in a quasi creative function would reveal’ Id., ‘Diritto internazionale e diritto interno’,(1957) 40 Rivista di diritto internazionale 26–102, 88. According to Barile the Community ‘is not made upof closed legal orders in which the legislative will tends towards legal monopoly, but open legal orders’(Id., ‘Sulla struttura delle Comunità europee’, (1964) 47 Rivista di diritto internazionale 17–22, 19).



conceptualised and resolved in terms of conflict between competing but comparablelegal principles.

C Conflicts and Balancing

When the legal order dissolves into a multilevel legal space and authority declines intoauthoritativeness, then the claims of competing legal orders can be conceptualised andbalanced in terms of conflicting legal principles. This situation ceases to appear asa conflict between legal orders—eg the sovereignty of the State which clashes withthe autonomy of the European Community—but rather takes the form of a conflictbetween fundamental principles: so, the democratic principle pursued by Article 1 ofthe Italian Constitution has to be balanced against the goals of peace and justice amongNations laid down by Article 11 of the Constitution, the protection of a constitutionalright has to be weighed up against the constitutional principle of openness to Commu-nity law, and the principles of uniformity and efficacy of Community law have to beenforced in abidance to the constitutional traditions common to Member States, etc.84

Pluralism of legal orders evolves into pluralism of fundamental principles, and fromthe plurality of competing or integrating legal orders we move to a plurality of legalprinciples in need of implementation, harmonisation and balancing.

The translation of legal orders into principles, of autonomous authorities into com-peting authoritative (defeasible) sources, has numerous theoretical and practical impli-cations. This conceptual change makes it possible to conceive of unity and order—interms of ‘reasonableness’ and ‘dialogue’—when what we are witnessing is conflict. Thewords of Giovanni Tarello regarding the theory of legal order are all the more appro-priate for the pluralism of principles: it has the ‘function of hiding fractures andidentifying consistency in the system (unity of the legal order) where the immediatereality is one of contradictions and conflicts between forces that pretend to be legal’.85

As a result of the pluralism of principles, European integration can be conceptualisedas an ordered process, a process devised in order to comply with fundamental principlesand a process put in order by the balancing of principles and the dialogue betweencourts.

V Continuity and Discontinuity in Juridical Discourse

In the transition from one form of legal pluralism to the other, we can note importantcontinuities in the juridical discourse. Indeed, rather than of a transition, we shouldspeak of different overlapping models, techniques and chains of arguments. The dis-course on legal principles does not replace but integrates the reasoning based onrelations among legal orders, balancing decisions coexist with the traditional normativehierarchies and usual techniques for solving internal antinomies, and certainty andlegality continue to be, if not the point of closure of the legal order, at least general

84 A fine example in recent legal scholarship is to be found in M. Kumm, ‘Who is the Final Arbiter ofConstitutionality in Europe?’ (1999) 36/2 Common Market Law Review 351–386, who proposes overcom-ing the ‘European monism’ of the ECJ and the ‘democratic statism’ of the German Constitutional Courtby adopting a ‘principled approach.’ He concludes that the best theory of the relations between nationallaw and European law is ‘the one that realizes these principles to the highest degree possible, all thingsconsidered.’ The balancing test shifts from being a judicial technique for solving conflicts betweenprinciples to a technique for solving conflicts between legal orders.

85 G. Tarello, ‘Ordinamento giuridico’, cit., 194.



principles that is worth pursuing. The old forms can survive well, and so there is notransition from one paradigm to another, but rather an increase of legal reasoning’scomplexity and combinatory possibilities.

Moreover, in practical terms, the pluralism of principles retains all the flexibility andindeterminacy of the pluralism of legal orders. The decision on the conflict betweenfundamental principles, just like the decision on the conflict between legal orders, isessentially ungrounded: the court openly shows the discretion it exercises when makingits decision. Just like the decision on the conflict between legal orders, the decisionon the conflict between principles is sensitive to the context, particular, ad hoc: theprinciples can always come into conflict again, because a hierarchy of fundamentalprinciples is lacking and there is no integrated legal order. The openness of the legalorder is a question of degree, to be decided on a case by case basis.

There are also numerous elements of continuity in conceptual terms. The autonomyand authoritativeness of the legal order, as conceptualised by legal pluralism, survive inwhat can be called the autonomy and authoritativeness of fundamental principles.Indeed, principles too can be said to be more or less authoritative, more or less relevant,because they do not exclude the validity of other principles and do not always prevailin case of conflict. Principles too can be said to be autonomous, or better ‘supreme,’because they ground their claim to authority on themselves—they ground withoutbeing grounded. Principles offer a surplus of legitimacy because, since they are ‘fun-damental’, they justify decisions on the most diverse legal issues. Like the concept oflegal order, principles are also dynamic, and not only because their normative contentand their equilibrium points change over time, but above all because they allow toconceive of legal change as a regulated, ordered process. The unity of the (dis)integrat-ing legal space can be conceptualised in terms of shared reasonableness achievedthrough a principled dialogue.

Of course the differences between the concepts of legal order and fundamentalprinciples are also important and are particularly evident as regards the concept of legalorder conceptualised by non-pluralist theory of legal order. Unlike legal orders, whichare relative, consistent and incommensurable, fundamental principles are universal,conflicting and commensurable. The legal orders conceptualised by the non-pluralistlegal theory express an exclusive viewpoint on legality, while principles are a pluralityof ‘points of attack’ (Angriffspunkte) on the most varied legal questions.86

But the most apparent difference is this: fundamental principles, unlike legal orders,are universal because they do not have an outside. Legal orders are exclusive sets ofnorms but, as we have seen, they have an outside. Their claim to authority can berelativised to a specific point of view, which depends on the position of the adjudicatingbody. From an external point of view, it is possible to observe that at times, differentnormative orders make claims that are incompatible, mutually irrelevant and incom-mensurable. By contrast, fundamental principles have no outside: the authoritythey claim cannot be relativised to a particular point of view. Of course, fundamentalprinciples may enter into conflict with each other and, as a consequence, it can be saidthat their binding force changes from case to case and from court to court. The practiceof principles is perhaps even more sensitive to the context, case based and topical

86 These are words of C. Schmitt, ‘Die Tyrannei der Werte’ (1967), It. transl. La tirannia dei valori (Roma,Pellicani, 1987), according to whom ‘the transformation into values, the valorisation (Ver-Wertung) makeswhat was incommensurable commensurable. Goods, goals, ideals and interests which have nothing incommon . . . become in this way comparable; they become the possible object of compromises’ (ibid,30–31).



than the theory of legal order.87 In this respect, one might say that they are ‘relative.’However, considered in themselves, fundamental principles are absolute and universal,because they assert their claim to authority on every legal question and against everyadjudicator, regardless of its position in or outside of any given legal order.

VI Conclusions

Legal order, legal pluralism and fundamental principles are ‘just’ words and so far wehave talked only about changes in legal semantics. We have talked about dogmaticmodels, ie patterns of legal argumentation which, as we have seen, are capable ofjustifying whatever decision on every controversial issue. Taking a stance on one orthe other of these models on the basis of some cultural pre-understanding or politicalcommitment in favour of national sovereignty or human rights would be ingenuousand clearly beside the point. If, as it seems, the theories of legal order, legal pluralismand fundamental principles are ‘pure theories,’ if they are open to any use and concretedecision on the part of the adjudicator, then—one might say—legal order, legal plu-ralism and fundamental principles are concepts of no political significance whatsoever.

This, however, would be a too hasty conclusion. It is important to appreciate also thepolitical meaning of changes in legal semantics which are linked to constitutionaltransformations of great magnitude. Indeed, the theoretical crisis we have witnessed—crisis of the legal order’s authority, crisis of its autonomy, crisis of distinction betweeninternal and external—can easily be related, as Carl Schmitt had already noted,88 tothe crisis of a legal and political order based on the figure of the sovereign State. To putit differently, all these crises are nothing but the juridical description of open andunpredictable processes that seem to move towards internationalisation and regionalintegration—something that might well be called, according to different theoretical andpolitical perspectives, post-national constellation, imperial constitution or simplyglobal governance.89

So, as it is always the case, the content of the law continues to depend on concretepolitical decisions made by the legislator and the courts. Concepts and theories do notdecide. However, concepts and theories change in the course of time in response to avariety of factors—cultural, political, institutional and also ‘purely legal’ factors, suchas the need to offer a solution to a new kind of conflict (the so-called external antino-mies) and the need to create consistency and order in the system. The change in legal

87 R. Dworkin, Taking Rights Seriously (1977) (London, Duckworth, 2004), at 26: ‘Principles havea dimension that rules do not—the dimension of weight or importance’; ‘rights may vary in strengthand character from case to case, and from point to point in history’ (ibid, 139). R. Alexy, A Theory ofConstitutional Rights (1986) (Oxford, Oxford University Press, 2002), at 47 ff.: principles as ‘optimizationrequirements, characterised by the fact that they can be satisfied to varying degrees’; they have ‘equalstatus in the abstract’ but have also ‘greater [or lesser] weight in the concrete case’; between them there is‘no relation of absolute precedence.’ T.R.S. Allan, ‘Constitutional Rights and Common Law’, (1991) 11Oxford Journal of Legal Studies 460: ‘a principle’s weight will vary infinitely within an infinite range offacts and circumstances.’

88 C. Schmitt, ‘Über die zwei großen “Dualismen” des heutigen Rechtssystems. Wie verhält sich die Unter-scheidung von Völkerrecht und staatlichen Recht?’ (1939), in Id. (ed.), Positionen und Begriffe im Kampfmit Weimar-Genf-Versailles 1923–1939 (Berlin, Duncker & Humblot, 1994), at 297–308.

89 J. Habermas, The Postnational Constellation (1989) (Cambridge, Polity Press, 2001); M. Hardt,T. Negri, Empire (Cambridge, Mass.-London, Harvard University Press, 2000); J.N. Rosenau,E.-O. Czempiel (eds), Governance without Government: Order and Change in World Politics (Cambridge,Cambridge University Press, 1992).



forms provides us with a narrative—albeit a highly abstract one—of the processunderway. Such process does not correspond to any particular decision on the partof the adjudicator and of the legislator. Rather, it corresponds to structural changestaking place in the political form of the constitution.

First submission: January 2011Final draft accepted: February 2011



Documents

Legal Order, Legal Pluralism, Fundamental Principles. Europe and Its Law in Three Concepts