The Heteronyms of European Law

• DOI: http://doi.org/10.1111/1468-0386.00077
• Date: 01 June 1999
• Published date: 01 June 1999
• Author: Miguel Poiares Maduro

The Heteronyms of European Law

Miguel Poiares Maduro

Phelan, D. Rossa, Revolt or Revolution: The Constitutional Boundaries of the European

Community (Sweet & Maxwell 1997)

Can the same ‘system of law’ be conceived, interpreted, applied and legitimised in

different manners by different legal orders while maintaining its integrity and not

damaging that of the different legal orders? Up to a point, Rossa Phelan tells us in

Revolt or Revolution. The book offers us a new vision of Community law through the

different heteronyms which it assumes exist in Community law itself, as in public

international law and national constitutional law. Rossa Phelan develops an analysis

of the relationship between Community and national law which is based on different

criteria of validity and legitimacy, depending on whether it is observed from the

perspective of Community law, public international law or national constitutional law;

a possibility which has been partly suggested in a well known article by Neil

MacCormick.

1

To a great extent, Rossa Phelan also shares with Neil MacCormick the

belief that this legal pluralism is viable and that the varied legal orders can peacefully

coexist with their different conceptions of the supremacy and direct effect of

Community law. However, in contrast with Neil MacCormick, Rossa Phelan is

convinced that conflicts are unavoidable in the area of the constitutional boundaries

between national and Community law and will assume the character of Revolt or

Revolution. Unless, of course, Community law revises its claims to absolute supremacy

over national law. How this is argued and the extent to which this entails an

abandonment of legal pluralism will be discussed below.

This is both a fascinating and difficult book to review. It is fascinating because it

challenges us to review our core assumptions of Community law in the light of the

engaged ‘critique’ of the process of European legal integration made by the author

and the way in which it is normally described. It is difficult because much of our

stance with regard to the book and its general argument depends on whether or not

we accept the initial assumptions of the author. As Rossa Phelan states right at the

outset: ‘the method and the argument in this work are intertwined’ (p3). He adopts a

formalist approach and addresses three legal orders (international, Community and

national) exclusively from their own internal point of view. The aim ‘is to find the most

neutral approach to the identification and consideration of the problems treated in this

book’ (p4). The concerns with a perfectly systematic and logical organisation of the

book and its arguments appear, at times, to be almost as obsessive as the author’s

intent to stress that what he does ‘is to try to describe so far as possible the law as it is,

and not as it ought to be or as it would be viewed through the varying lenses of wider

perspectives’ (p4). There appears to be, on the part of the author, a belief in such a

thing as a neutral methodology or theory of law that could furnish us with an

objective viewpoint from which to look at Community law and its relationship with

160 © Blackwell Publishers Ltd. 1999

1

‘Beyond the Sovereign State’ (1993) 56 MLR1.

European Law Journal, Vol. 5, No. 2, June 1999, pp. 160–168

© Blackwell Publishers Ltd. 1999, 108 Cowley Road, Oxford OX4 1JF, UK

and 350 Main Street, Malden, MA 02148, USA