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 date: 01 November 2008
• Author: Nicolas Triart,Florence Giorgi
• Date: 01 November 2008
• DOI: http://doi.org/10.1111/j.1468-0386.2008.00441.x

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.