National Judges, Community Judges: Invitation to a Journey through the Looking‐glass—On the Need for Jurisdictions to Rethink the Inter‐systemic Relations beyond the Hierarchical Principle

Published date01 November 2008
AuthorNicolas Triart,Florence Giorgi
Date01 November 2008
National Judges, Community Judges:
Invitation to a Journey through the
Looking-glass—On the Need for
Jurisdictions to Rethink the Inter-systemic
Relations beyond the Hierarchical Principle
Florence Giorgi and Nicolas Triart1
Abstract: The historical conf‌lict between the European Court of Justice (ECJ) and the
national constitutional courts regarding primacy is a misunderstanding. In going through
the looking-glass, we can understand that, on the contrary, the ECJ and the national
constitutional courts adopt comparable solutions in their treatment of legal pluralism, and
that they see the negation of pluralism as essential for the survival of their own legal
orders. Therefore, these judges must be offered a new theoretical context to help them
reconcile their role as supreme guardian with the taking into account of the pluralist
context. Finally, practical proposals must be made to give judges the instruments and
techniques that are capable of ref‌lecting this plural structure.
I Introduction
The integrity of each legal order, which makes it specif‌ic, autonomous, whether it be
national, Community or international, is not only defended by specialised doctrine or
the legislature which is peculiar to it. It is for the supreme court of each order to
preserve its integrity. The reason for this situation is found less in the particular cast of
mind of these judges than in the systemic role of the jurisdictions in which they sit. The
highest jurisdiction of each legal order is naturally invested with the highest authority
of interpretation within that order. It draws this authority—and hence its legitimacy—
from the supreme norm of the legal order in question. This defence of integrity leads to
the adoption of a point of view, internal to the legal order, which logically postulates its
primacy over all the others, and at the same time leads the judge to consider himself at
the centre of the legal universe.
1Florence Giorgi is a PhD candidate and an assistant at the Centre de Droit Européen (University of
Luxembourg, Luxembourg). Nicolas Triart is a PhD candidate at the Centre d’Etudes et de Recherches
Internationales et Communautaires (CERIC) at the Université Paul Cézanne (Aix-Marseille III, France).
The authors wish to thank Advocate-General Miguel Poiares Maduro, as well as Professors Francis
Snyder and Jörg Gerkrath, for their comments, and the time that they have contributed towards the
improvement of this article.
European Law Journal, Vol. 14, No. 6, November 2008, pp. 693–717.
© 2008 The Authors
Journal compilation © 2008 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
In this regard, the use by the ECJ of the principle of primacy in relations between
the Community legal order and national legal orders provides an illustration of the
diff‌iculty in taking account of the validity of perspectives different from one’s own.
This goes as well for the national jurisdictions which resist the idea of the intrinsic
supremacy of Community law, preferring to f‌ind the source of this primacy in their own
legal order. The national and Community jurisdictions seem, from a theoretical point
of view, locked in sterile opposition.
Now, our objective is to highlight the existence of a plurality of perspectives in
inter-systemic relations expressing potentially conf‌licting pretensions, but equally valid
from the internal point of view of each of the opposing systems.2
The proponents of a normativist conception, according to which law is a hierarchic
system in which the validity of each norm is assured by its conformity to the superior
norm, and which rests upon the supposed existence of a single fundamental norm that
guarantees the validity and unity of the whole, raises a logical contradiction in the
existence of several hypothetical fundamental norms. They probably underline that this
hypothesis is acceptable only to the extent that we adopt a dualist conception in which
each system is independent, isolated with regard to others.
We submit that a comprehensive study of inter-systemic relations requires to adopt,
in the tradition of Michel Van de Kerchove and François Ost, a ‘moderate external
point of view’.3It is not a question of looking at relations between legal orders from a
perspective outside the legal universe, as a sociologist or economist might do, but rather
of treating the discourse of national jurisdictions and the ECJ for what it is, that is to
say, the expression of a point of view internal to the legal order the integrity of which
they guarantee.4Otherwise, the adoption of this point of view is not possible unless on
condition of keeping a conception of law a priori indifferent to its hierarchical organi-
sation, and which accepts the possibility of punctual and changing articulations
between competing sources of sovereignty. It is a pluralist conception of law in the
sense, notably, of Miguel Maduro.5
2There is no question here of denying the interest of an approach which, while aiming to bring a greater
coherence to the expression of the internal point of view by the systematisation of decisions given by these
jurisdictions, contributes to its construction.
3A point of view described as extremely radical in François Ost et Michel van de Kerchove, Le système
juridique entre ordre et désordre, PUF Coll. Les voies du droit, Paris, 1988, 29.
4Epistemological approach developed by H. Hart and taken up by Neil MacCormick (N. MacCormick,
‘Beyond the Sovereign State’, (1993) 56 The Modern Law Review 1, at 1–18), Catherine Richmond
(C. Richmond, Perspectives on Law: System, Authority and Legitimacy in the European Union (Thesis,
European University Institute, Florence, 2000) and again François Ost and Michel van de Kerchove
(F. Ost and M. van de Kerchove, Le système juridique, entre ordre et désordre (coll. Les voies du Droit,
Puf, 1988), 26 et seq) which consists of taking into account, in the most comprehensive manner possible,
both the requirements of systematisation inherent in law and also of its limits, without itself assuming the
task of pursuing this systematisation. The objective described by Michel Van de Kerchove and François
Ost is to distinguish the requirement of scientif‌ic systematisation from that of legal systematisation. The
lack of systematisation of the object studied in no way affects the systematisation of the theory developed
in relation with this object, these authors cite on this point P. Amselek, Méthode phénoménologique et
théorie du droit (LGDJ, 1964), 187. For a critical approach, see A-J. Arnaud, ‘La valeur heuristique de la
distinction interne/externe comme grande dichotomie pour la connaissance du droit: éléments d’une
démystif‌ication’, (1986) Droit & Société 2.
5M. Poiares Maduro, ‘Contrapunctual Law: Europe’s Constitutional Pluralism in Action’, in N. Walker
(ed), Sovereignty in Transition (Hart Publishing, 2003), 501–537.
European Law Journal Volume 14
© 2008 The Authors
694 Journal compilation © 2008 Blackwell Publishing Ltd.

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