Are There Methods of Reasoning on ‘Meta‐Legislation’? The Interpretation of Legislative Competence Norms within the Methodology of European Constitutional Law

• DOI: http://doi.org/10.1111/j.1468-0386.2010.00532.x
• Date: 01 November 2010
• Published date: 01 November 2010
• Author: Marcus Hahn‐Lorber

eulj_532760..779

Are There Methods of Reasoning on

‘Meta-Legislation’? The Interpretation of

Legislative Competence Norms within

the Methodology of European

Constitutional Law

Marcus Hahn-Lorber*

Abstract: Legislative competence norms are paradigmatic elements of European consti-

tutional law and the supranational, post-federal era. The article aims to address legislative

competence norms from the viewpoint of methodology by considering significant features

of reasoning on European legislative competence norms. The discussion will be based on

understanding legislative competences as ‘meta-legislation’. That concept encompasses a

substantive rather than formalistic, and a politically informed rather than strictly posi-

tivist account of legislative competences and their methodology. Against that background,

the interpretation of competence norms is assessed. Subsequently, the process of interpre-

tation is discussed according to judicial practice, constitutional theory and general legal

methodology. A consideration of the significance of the—usually vast—wording of com-

petence norms completes that discussion. Finally, consequences about the political inclu-

siveness of interpreting competence norms and the issue of ‘clarity’ are drawn. A

conclusion summarises the results.

I Introduction

Attributing competences to different constitutional spaces—or ‘levels’—is a core issue

of the constitutional law of vertically structured orders. An example of such order is the

European commonwealth. Similarly to federations, competences are distributed

among the European Community and its Member States. These are, mainly, legislative

* Doctoral Candidate at the Chair of Public Law, Legal Theory and Legal Sociology, Prof. Dr Martin

Morlok, Faculty of Law, Heinrich-Heine-Universität Düsseldorf. I owe thanks to the members of the

European Law Research Group, School of Law, University of Edinburgh, and to the participants of the

Law and Language Colloquium of the Universities of Düsseldorf and St Gallen, for their remarks on the

article. I am particularly grateful to Professor Neil Walker for all his stimulating remarks on constitu-

tionalism and competence issues while supervising my Masters dissertation at the University of Edin-

burgh in 2008. He introduced the concept of ‘meta-legislation’ during a discussion at the University of

Edinburgh on 6 May 2009. Any mistakes remain my own.

European Law Journal, Vol. 16, No. 6, November 2010, pp. 760–779.

© 2010 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

competences. They confer legislative powers, and, as they are ascribed to different

constitutional spaces, boundary disputes arise. Thus, there is a need to interpret and to

distinguish competence norms. Beyond that and in comparison to ordinary statutes,

legislative competences exhibit methodological particularities, arising from their

constitutional-political context. As they guide legislative action, they are, substantially,

‘meta-legislation’.

As such, legislative competences are paradigmatic for the broadening vertical dimen-

sion of constitutional law. What has been called ‘multi-level constitutionalism’1con-

stitutively rests upon the attribution of legislative powers to constitutional spaces. This

increases complexity which is approachable through a solid methodology. In addition

to the—important—doctrinal work of systematising and commenting on legislative

competences and their application in case-law, it might be fruitful to turn the perspec-

tive and to address how European legislative competences have been and should be

interpreted. Thinking about methods of interpretation is underlying to, but distinct

from, the practice of interpretation. Methodology is situated between theory and

practice, creating a reflexive relationship between the two. With regards to time, both

are in a diachronic relationship with each other. Interpretation as a social practice2

draws on previously established methods and, in turn, can influence methodological

reflections themselves. Regarding the substance of constitutional law, methodology in

consequence ensures cross-fertilisation between theory and practice and is thus a

relevant complement to the practical application and scholarly systematisation of

competence norms.

In approaching legislative competence norms, time and substance are relevant meth-

odological aspects, and these will be investigated below. In addition, legislative com-

petences are situated within the context of public law and, more precisely, European

constitutional law. This does not imply a plea for a formalistic approach to method-

ology, applying distinct methods to formally distinct areas of law, as there is a generally

valid account of legal methodology.3However, different areas of law do exhibit par-

ticular methodological conditions which should be taken into account. With regards to

public law and competences, this is the connection between governing, constitutiona-

lised political power and sovereignty.4Drawing on those foundations and the findings

of earlier methodological contributions to the competence debate within national

1I. Pernice, ‘Multi-Level Constitutionalism and the Treaty of Amsterdam: European Constitution Making

Revisited?’, (1999) 36 Common Market Law Review 703. Cf I. Bache and M. Flinders, Multi-Level

Governance (Oxford University Press, 2004) and M. A. Pollack, ‘Theorizing EU Policy-Making’, in H.

Wallace, W. Wallace and M. A. Pollack (eds), Policy-Making in the European Union (Oxford University

Press, 5th edn, 2005) 39; with critical remarks, A. v. Bogdandy, ‘The European Union as a Supranational

Federation: A Conceptual Attempt in the Light of the Amsterdam Treaty’, (2000) 6 Columbia Journal of

European Law 27, at 30–34.

2See R. Dworkin, Law’s Empire (Fontana, 1986), at 50–53. Cf M. Morlok, R. Kölbel and A. Launhardt,

‘Recht als soziale Praxis: Eine soziologische Perspektive in der Methodenlehre’, (2000) 31 Rechtstheorie

15.

3Cf, however, M. Loughlin, The Idea of Public Law (Oxford University Press, 2003), at 131–152. Against

this, the idea of in dubio pro parte una has been put, such as P. Dann, ‘Thoughts on a Methodology of

European Constitutional Law’, in P. Dann and M. Rynkowski (eds), The Unity of the European Consti-

tution (Springer, 2006), 37, at 39–41.

4Cf K. Greenawalt ‘Constitutional and Statutory Interpretation’, in J. Coleman and S. Shapiro (eds), The

Oxford Handbook of Jurisprudence and the Philosophy of Law (Oxford University Press, 2002), 268, at 289

et seq. Going further, see Loughlin, ibid,passim.

November 2010 Methods of Reasoning on ‘Meta-Legislation’

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