The Jurisprudence of Constitutional Conflict: Some Supplementations to Mattias Kumm

• Author: Theodor Schilling
• Date: 01 March 2006
• DOI: http://doi.org/10.1111/j.1468-0386.2006.00314.x
• Published date: 01 March 2006

The Jurisprudence of Constitutional

Conf‌lict: Some Supplementations to

Mattias Kumm

Theodor Schilling*

Abstract: Mattias Kumm has developed a jurisprudence of constitutionalism beyond the

State (CBS) proposing principles, to be applied by courts of both the Community and the

municipal levels, about how to deal with constitutional conf‌licts. This CBS is supposed to

be part of neither the Community nor the municipal legal systems but to emerge from a

legal practice comprising the whole of Community and municipal laws. Preliminarily

Kumm claims, situating himself, for argument’s sake, within the framework of analytical

jurisprudence, that there is no legal reason for a court not to choose a different ultimate

legal rule than the one it used to adhere to. These supplementations argue that Kumm’s

preliminary claim is erroneous. If accepted, this argument eliminates one of the reasons

for the development of CBS. Concerning Kumm’s main claim, these supplementations

argue that the substantive content of CBS—its principles—may well be,and indeed largely

already are, accommodated within the traditional structure of legal systems founded

on ultimate legal rules, and that the structure proposed by Kumm would make impossible

any distinction between general and legal discourses, thereby seriously undermining the

determinacy of law. It also argues that Kumm’s CBS can be reconstructed, within the

analytical framework, only as outright supremacy of EC law.

I Introduction

In this journal, Mattias Kumm has set out not to f‌ind an answer to ‘one of the core con-

stitutional questions for national constitutional courts within the EU [i.e.] whether to

accept the claim made by the Court of Justice that EU law is the supreme law of the

land’1but rather to show that the question is wrongly put. His forceful argument,which

is part of a larger project to develop a ‘Jurisprudence of Constitutionalism Beyond the

European Law Journal, Vol.12, No. 2, March 2006, pp. 173–193.

© 2006 The Author

Journal compilation © 2006 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ,UK

and 350 Main Street, Malden, MA 02148, USA

*Lawyer in the translation directorate of the Court of Justice of the EC, Extra-ordinary (apl.) Professor,

Humboldt University at Berlin. This article was written during my time as Global Emile Noël Fellow

from Government at the New York University School of Law. I am grateful for very helpful comments

on an earlier version of this paper I have received from Mattias Kumm and Michael Wilkinson. The usual

disclaimer applies.

1Mattias Kumm, The Jurisprudence of Constitutional Conf‌lict: Constitutional Supremacyin Europe before

and after the Constitutional Treaty,(2005) 11 ELJ 262.

State’ (CBS), characterised by him as ‘a general jurisprudential approach’,2deserves an

in-depth discussion. These supplementations aim at promoting that discussion.

Kumm, situating himself, for descriptive purposes, within a model of analytical

jurisprudence, starts with purportedly debunking the myth that national courts are

bound by their respective constitution because they must presuppose a corresponding

ultimate legal rule. Rather, he claims, ‘those participating in the practice of law have

the capacity to change [that rule]’.3While accepting that such a change would amount

to a revolution,4he maintains that there are no legal reasons for the acceptance of this

or any other ultimate legal rule;5to look to either as the ultimate point of reference

would amount to a petitio principii.6

Stepping outside the analytical model, Kumm’s starting-point in discussing the nor-

mative purposes of CBS is the question: ‘[w]hat is the interpretation of the relation-

ship between national constitutions and the EU constitution that best f‌its and justif‌ies

legal practices in the European Union, seen as a whole?’;7those practices including, in

particular, judgments of national constitutional courts and the Court of Justice but

also, it appears, ‘legal commitments made by national public authorities over time’,

especially the delegation of legislative authority to the EC.8On this basis, according to

Kumm, CBS requires of national courts ‘to construct an adequate relationship between

the national and the European legal order on the basis of the best interpretation under-

lying them both’, and to do so by seeking guidance from both national and European

constitutional law.9His main reason for asking national courts to take account also of

foreign national and European practices appears to be the implausibility of not taking

them into account, given that the basic underlying principles are the same on the

national, European, and even international levels.10

Kumm bases this ‘Fresh Start’11 on the assumption that the analytical model of

jurisprudence does not allow for an adequate description or reconstruction of the real

issues at play in the Community and Member State legal practices. As an illustration,

he adduces the fact that, whereas under the analytical model national constitutional

supremacy is the def‌ining factor of the national legal system, Member States’ courts’

‘[a]cknowledging the supremacy of EU law would merely be another step along a path

of legal integration that has guided the development of national practice for some

time’.12 To answer the question for the best understanding of the relationship between

national and European constitutions,he develops quite detailed principles of CBS. The

f‌irst principle is the effective and uniform enforcement of EC law (ref‌lecting the prin-

ciple of legality). This principle can be rebutted if and to the extent that countervail-

ing principles have greater weight. Those principles are three in number; they concern

the effective protection of fundamental rights of citizens, the respect of the EC’s

European Law Journal Volume 12

174 © 2006 The Author

Journal compilation © Blackwell Publishing Ltd. 2006

2Kumm, op. cit. note 1 supra,at 299.

3Kumm, op. cit. note 1 supra,at 273.

4Kumm, op. cit. note 1 supra,at 279.

5Kumm, op. cit. note 1 supra,at 274.

6Kumm, op. cit. note 1 supra,at 286.

7Kumm, op. cit. note 1 supra,at 286 (emphasis in the original).

8Cf. Kumm, op. cit. note 1 supra,at 287.

9Kumm, op. cit. note 1 supra,at 286.

10 Kumm, op. cit. note 1 supra,at 286–287.

11 Kumm, op. cit. note 1 supra,at 282, and cf. H. L. A. Hart, The Concept of Law (Clarendon Press, 2nd

edn 1994) at 79.

12 Kumm, op. cit. note 1 supra,at 285.