Directives in EU Legal Systems: Whose Norms Are They Anyway?

• Published date: 01 March 2011
• Date: 01 March 2011
• DOI: http://doi.org/10.1111/j.1468-0386.2010.00544.x
• Author: Julie Dickson

eulj_544190..212

Directives in EU Legal Systems: Whose

Norms Are They Anyway?

Julie Dickson*

Abstract: This article is concerned with whether the concept of a legal system—long a

centrepiece of state-based legal theories—is a useful conceptual tool in theorising the

contemporary EU and its legal relations with its Member States. The focus lies particu-

larly with EU directives, and with what the character and operation of this distinctive type

of EU norm can tell us as regards the existence of and relations between legal systems in

the EU. I argue for the view that the EU is comprised of distinct but interacting legal

systems at EU and national level, and claim that the character and operation of directives

supports this view. Throughout the discussion I try to bring the conceptual tools of

analytical legal philosophy to bear on puzzles generated by EU law and its relations with

national law, in order to show that a sound analysis of aspects of the EU can benefit from

abstract legal philosophical reflection, and vice versa.

I Introduction

Does the idea of laws being grouped together into distinct legal systems still have a

place in understanding trans- and supra-national legal phenomena such as is found in

the contemporary EU? If the concept of a legal system is still a useful conceptual tool

in considering aspects of the EU and its law, then how should we understand the

relations between the national law of the EU’s constituent Member States and EU law

itself, in terms of this concept? Do EU legal norms themselves constitute a distinct EU

legal system over and above those legal systems of the Member States? How should we

understand the various interactions between national law and EU law, perhaps espe-

cially when national courts apply, or indeed exhibit resistance to applying, EU norms

in domestic legal actions?

These are difficult questions and, admittedly in more abstract form, have often

featured in the writings of legal philosophers interested in questions such as the nature

of legal validity, the extent and limits of legal systems, the differences between legal and

non-legal societal norms, and what it is for a norm to be part of one legal system rather

* Faculty of Law, University of Oxford and Somerville College, Oxford. The author is grateful to Yuri

Borgmann-Prebil, Pavlos Eleftheriadis and Malcolm Ross, and to the graduate students in the Constitu-

tional Principles of the European Union course at Oxford University—especially Tom Adams, Christoph

Voelk and Felix Wardle—for thought-provoking and helpful comments on some of the ideas featuring in

this article.

European Law Journal, Vol. 17, No. 2, March 2011, pp. 190–212.

© 2011 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

than another.1Indeed, for some legal philosophers, understanding what a law is can

only adequately be achieved by understanding what a legal system is,2and, for others,

understanding the relations between national and international legal orders has

played an important role in their general theories of the nature of law and of legal

normativity.3

For all this, however, there have been few studies which attempt to consider legal

philosophical work on the general theory of legal systems in the context of the specific

and concrete challenges raised by EU law and its interactions with national law.4This

relative dearth of scholarship from legal philosophers addressing the distinctive chal-

lenges generated by the EU legal order, combined with an apparent lack of effective

academic interaction between EU legal scholars and philosophers of law speaks of

missed opportunities all round: those interested in constructing general theories of law

could learn much from reflecting on the distinctive challenges posed by the EU, and EU

legal scholarship could benefit from more sustained legal philosophical reflection as

regards many of the issues it addresses.5

In recent and ongoing work, I have tried to take small steps towards turning those

missed opportunities into genuine ones, considering issues such as how we should

understand interactions between the EU legal order and national legal orders,6and

what challenges lie in wait for legal theorists attempting to construct a theory of EU

legal systems.7This article attempts to continue that process, albeit in a modest way.

My focus here lies specifically with just one type of EU norm: directives. Perhaps due

partly to their sui generis character, and partly to the case-law complications surround-

ing the limitations on the doctrine of direct effect as applied to this type of norm,

1eg H. L. A. Hart, The Concept of Law (Clarendon Press, 2nd edn, 1994), passim but especially chs 5 and

6; J. M. Finnis, Natural Law and Natural Rights (Clarendon Press, 1980), especially at 266–273; 276–280;

282–284; 291–296; 355–357; H. Kelsen [M. Knight (transl)], The Pure Theory of Law (University of

California Press, 2nd edn, 1967), passim, but especially chapters 4 and 5; N. MacCormick (ed), Construct-

ing Legal Systems:‘European Union’ in Legal Theory (Springer Press, 1997).

2J. Raz, The Concept of a Legal System (Clarendon Press, 2nd edn, 1980), passim, but see, eg, at 2 for an

explicit statement of this claim.

3Kelsen, op cit n1supra, chapter V at 214–217 and chapter VII.

4For a thoughtful but rare example of this kind of scholarship, see C. Richmond, ‘Preserving the Identity

Crisis: Autonomy, System and Sovereignty in European Law’, (1997) 16 Law and Philosophy 377.

5Some legal philosophers have recently made similar calls regarding inter- and trans-national legal phe-

nomena. For example, Jeremy Waldron has claimed that analytical jurisprudence’s failure adequately to

analyse and explain aspects of international law is ‘nothing short of scandalous’ and that such theorising

is ‘the issue of the hour’, in J. Waldron, ‘Hart and the Principles of Legality’, in C. Grant et al (eds), The

Legacy of H.L.A. Hart, Legal, Moral and Political Philosophy (Oxford University Press, 2008), at 69. A

recent book by Keith C. Culver and Michael Giudice entitled Legality’s Borders, An Essay in General

Jurisprudence (Oxford University Press, 2010) also calls for and engages in in-depth theorising about

various forms of intra-, trans-, supra- and super-state legality and proposes that we need to move beyond

traditional theories of legal systems and embrace an ‘inter-institutional account’ of these various forms of

non-state legality.

6J. Dickson, ‘How Many Legal Systems?: Some Puzzles Regarding the Identity Conditions of, and Rela-

tions between, Legal Systems in the European Union’, (2008) 2 Problema 9, available online at http://

www.juridicas.unam.mx/publica/librev/rev/filotder/cont/2/pr/pr4.pdf

7J. Dickson, ‘Towards a Theory of European Union Legal Systems?’, unpublished manuscript which is

planned to appear in an edited volume, working title, Philosophical Foundations of European Union Law,

currently under contract with Oxford University Press. I am co-editor of this latter work, together with Dr

Pavlos Eleftheriadis and part of the idea of the volume is to try to engender precisely the kind of academic

interaction and debate between legal and political philosophers and EU scholars that seems relatively

lacking in both EU scholarship and legal philosophy.

March 2011 Directives in EU Legal Systems

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