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Precedence of European Law- A Theoretical Comparative Study of the Driving Factors
Theories of International Law and PoliticsMSc International Business and Politics
Johanna Maria Bark
STU: 22 824
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1. Introduction
“According to the precedence principle, European law is superior to the national
laws of Member States. The precedence principle applies to all European acts
with a binding force. Therefore, Member States may not apply a national rule,
which contradicts to European law.”
(EUROPA, Summaries of EU legislation, webpage 2013)
The precedence principle guarantees the supremacy of EU law over national
law. The principle established by the Court of Justice of the European Union
(ECJ) have played a central role in shaping the development of EU law. The
principle is based on several prominent EU law cases and is of high political
relevance for the member states.
This paper will emphasize on the theoretical driving forces behind this
principle in the European Community. The complex question does not have a
straightforward answer and this paper would not provide the reader with an
exhaustive speculation. Instead, the paper will use two perspectives when
looking upon the driving principles and ideals for the member’s states
behaviour for this development. The two perspectives under instigation in this
paper are the Morgenthau explanation of a functional theory (realist) and Kant
interpretation of liberalism from his work “Perpetual Peace – A Philosophical
Sketch”. The differences of the perspectives provide us with a better
understanding of how international actors have conducted themselves during
the development of international law, in this case in a European context.
This comparative study will combine International law and international politics
that share the same conceptual space. (Slaughter, 1995) The two disciplines
comprise the rules and the reality of the international system and guide the
intellectual course of action that lawyers, political scientists and external
actors such as NGOs and businesses. Policy makers use this to describe the
world they study and seek to manipulate. This intertwined conceptual space is
relevant when searching to get an idea of the fact of international life and
transnational governance, as well as the value underpinning it. (Cali, 2010)
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This theoretical hybrid is the platform that this paper will rest upon when
investigating the discourse of EU law as superior to national law.
This is not a normative paper and no one of the perspectives will be assigned
to be the “best” approach. Instead, the aim is to get a better understanding the
political and legal incentives behind the progress of the shaping of the
precedence principle when using two different approaches to international
law. Both Kant and Morgenthau’s perspectives will be put into their historical
context and the shortcomings of the both perspectives will be emphasized.
But before the paper go deeper into the theories and EU law, a more profound
definition of the connection International Law and International Relations will
be presented below.
1.2 International Relations and International Law
Through time and within various theories there are different approaches as
whether politics and law can be separated. In the beginning was the law
(divine law) superior to politics. It was god who stated the fundamental rules
and no one could question it. But the legal system and its thinkers have added
more aspects to the legal system since then.
As mentioned above, is International Relations and International Law
concerned with the same international phenomena. They are both interested
about how we may identify international phenomena, such as the precedence
principle. It further relates such phenomena to how it affects domestic affairs
and how domestic affairs inform international phenomena. (Cali, 2010)
The perspectives approach these phenomena differently though. International
law is more technical in its nature and sets out what the rules governing an
event are. Additionally, it gives reasons for actors to act in a certain way and
the perspective evaluates the legal consequences of it. (Cali, 2010)
International relations is on the other hand more concerned and evaluates the
relevance and importance of reasons provided by international law, explains
why they are not followed in specific instances, and then evaluates political
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consequences if acting or refraining.(Cali, 2010) In other words, each
discipline needs to inform the other to be successful. This means that there is
no surprise that approaches and methodologies used in the international
relation sphere is applicable to the international law sphere as well.
When studying international law, and in this case EU law, political science
sphere get enriched when investigating how international actors conduct
themselves. From here one can estimate why the current principle of
precedence of EU law have been worth following or if they have been needed
a fundamental revision.
International legal theories comprise a variety of theoretical and
methodological approaches used to explain and analyses the content,
formation and effectiveness of public international law and institutions.
(Slaughter, 1995) Legal scholars have drawn from the four main schools of
thought in the areas of political science and international relations, realism
and liberalism is two of them, through an interdisciplinary approach, the
content of legal rules and institutions. This interdisciplinary approach will be
used when investigation the precedence principle of EU law below.
2. The precedence principle of EU law
The precedence principle is not inscribed in the Treaties, but has been
enshrined by the ECJ. (EUROPA web-page, 2013) It was the Courts decision
of the Costa versus Enel case1 that enshrined the principle in 1964. In this
case, the Court stated that the laws issued by European institutions are to be
integrated into the legal systems of Member States, who are obliged to
comply with them. This case is the fundamental legal platform for the
superiority of EU law against the member states national law. With European
law becoming superior to national law, the principle of precedence therefore
ensures that citizens are uniformly protected by a European law assure cross
all EU territories. (EUROPA webpage, 2013 web-page) 1 Case 6-64 Falmino Costa vs ENEL [1964] ECR 585, 593
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The precedence of European law is absolute. I addition to this is the national
judiciary also subject to the precedence principle, which’s implies that
member states case law should also respect EU case law. The Court of
Justices has ruled that national constitutions should also be subject to the
precedence principle. (EUROPA web-page, 2013). It is therefore of high
importance that national judges do apply with provisions of the national
constitution that does not contradict with European law and national
conflicting laws must be ignored by national courts. The national judges must
also ensure that the implementation of EU law is correct. It there is any doubt
judges make use the “reference for a preliminary ruling procedure”. This
means that the ECJ gives its recommended solution and the national court
gives it’s ruling on the substance of the issue.
The principle with its complementary jurisprudence that has been put into
force and developed during the latest decade has a strong influence on the
conception of EU law towards the member states. This incremental delegation
of power will now be looked upon from a theoretical point of view.
Liberalism and Realism proceed from different fundamental assumptions
about the international system: assumptions about the identity of the primary
actors in that system, the relationship of those actors to the state institutions,
and the primary determinants of state relations with one another. (Cali, 2010)
2.1 Realism and the principle
Morgenthau functional theory from 1940 is from a time of when international
collaboration was a failure. The League of Nation had collapsed and the
World War ll was a fact. International law is in other words just a function of
power struggles. (Morgenthau, 1940) Politics and law can not really be
separated because the perception is that states only adopts international legal
norms such as the precedence principle if it enhances their power or
subordinates the weaker state. Additionally are all the obligations breakable
from this approach. (Morgentahu, 1940) The only interest of states is power
and there is a need for international institutions to secure peace in between
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the states. This international legal system is the one who are based on norms
and ethics.
Morgenthau bases its functional theory on the realist approach. Realists view
states as the primary actors in the international system. States do not respond
primarily to legal rules, but rather to practical considerations determined by
the amount of power they have vis-à-vis to other states. (Cali, 2010) Realists
have traditionally argued that they seek to understand world politics as it is,
rather than how it should be. They have contrasted themselves as idealists,
who seek to build a better world through institutions, and rule of law. (Cali,
2010)
The realist would ague that the precedence principle is a product of the
interest and influence of powerful states also called “the victors justice”. They
would also argue that states only agrees with peace conventions and follow
the decisions of the ECJ to avoid having their own people and soldiers
violated and tortured. (Cali, 2010)
This state-centric theory has its shortcoming. What the realists fail to explain
is the emergence of the European Union as en entity in which states have
pooled their authority and have delegated aspects, such as the recent ail
principle, of their sovereignty to a supranational organization. Such institutions
and principles that the prediction imply are difficult to understand from a
purely state-centric and power politics perspective as the realist is. However,
liberal theorists consistently and successfully have challenged realist
assumptions about the nature of the international system and transnational
governance, such as the EU. Their alternative framework assumes that how
states behave depends on how they are internally constituted. This
perspective will be investigated further in the next section.
2.2 Liberalism and the principle
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Immanuel Kant argued in his work Perpetual Peace – A Philosophical Sketch
from 1795 that peace is the fundamental propose of international law. Sates
live under an ongoing threat of war and need institutions to keep a peaceful
environment. (Kant) He further agues that morally right actions can only be
ensured by freedom and autonomy of individuals. The state of domestic
politics from the member states plays an extremely important role.
The states stance towards international law is determined by their domestic
politics and in particular, by the aggregation of the preferences of key
domestic individuals and groups toward the rule of law. (Slaughter, 1995) This
can be exemplified by that democratic states, having a representative
government, are more likely than non-democratic states to accept the legal
regulation of both domestic and international politics, and more likely to
accept and observe international law. Furthermore, a complex net of
interstate, transnational and governmental relations to links democratic
societies that both their foreign policy bureaucracies and their civil societies
are interested in promoting and strengthening transnational cooperation
through the creation and observance of international legal norms. (Cali, 2010)
This is an argument that would promote the precedence principle. There is a
strong belief from liberals in the transnational cooperation. An incremental
development into a more unified European Community with legal principles
such as this principle is therefore not inconsistent from a liberal perspective.
Furthermore, countries that support to adhere to the rule of law (including the
precedence principle) domestically may see similar virtues in supporting it on
a EU-level; similarly, domestic legal structures in democratic states may be
better adopted to incorporate EU obligations and in this case the principle.
(Slaughter, 1995) Kant argues further that liberal international relations that
democratic states have an inbuilt propensity towards respecting the demands
of legality. Obedience to the law provides moral exculpation for both the
initiation and the outcome of a political choice, or course of action.
The liberal theory makes a number of assumptions, which contradicts with the
realists in the international system. It focuses on the interests and preferences
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of actors, and how preferences are aggregated and negotiated. The states
governments represent the interests of at least some segment of the domestic
polity, even if they are not democratic. (Slaughter, 1995) Therefore is their
behaviour in the international system reflected to some degree the
preferences of internal actors.
Liberals focus more on the institutions and how they create legal order,
whereas realists tend to view international politics as an unchanging and
ongoing power struggle amongst states, liberal generally are optimistic about
the role that rules and institutions can play in creating legal order, reducing
conflict, and fostering greater levels of cooperation between states. (Cali,
2010)
Liberalism does not reject the realist state centric perspective and the premise
that states are important actors in the international system, but they do
oppose the claim that they are the only actors of analysis worth studying. In
addition to realism do liberals give a greater value weight to the role played by
international organizations, non-governmental organizations and private
actors. (Slaughter, 1995) Politics and law should be separated and a strong
constitution that holds the states tighter is important. One could argue that
Liberal would not oppose a European republic with a fundamental
constitution.
3. Discussion
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Theories of international law offer responses to such challenges and try to
imagine the best principles that regulate the complex, diverse, and dynamic
international society that we have. This paper aims to answer the question on
what theoretical tools would be most relevant to use when looking upon the
member states incentives behind the precedence principle. The theories
under investigation are Morgenthau’s functional theory (realism) and Kant
interpretation of liberalism.
Morgenthau’s functional theory was published under a dark period of time in
world history. The League of Nations had collapsed and the World War ll was
ongoing. These preconditions can explain the pessimistic approach
Morgenthau had on transnational governance. Realism is also a state-centric
theory, which focuses on power politics where law and politics cannot really
be separated. This means that the principle of precedence of EU law would
be of a political character for powerful states to empower them more.
However, the fact that member states actually give away power when
applying this principle is not consequent with the theory.
Another example to the lack of fit towards Morgenthau’s realistic interpretation
and the precedence principle is the pessimistic approach the theory has on
EU development. The theory does not provide the state with any incentives or
explanations to the emergence of the European Union and its legal structures.
There is no accurate answer of why the precedence principle has developed
when only looking at only the realist theory.
Liberalism and Kant’s interpretation might explain some of the incentives for
the principles development and EU emergence better. Since the theory does
not only take states into consideration as actors, makes transnational
governance with superior principles more reasonable. (Cali, 2010) Liberalism
is known to be more optimistic when it come to transnational governance and
could therefore be argued to be a greater support to the preceence principle
and its superior characteristic.
But the liberalistic approach can also be questioned when looking upon the
driving forces behind the principle. Kant argues for an individual freedom
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under a unified constitution. First, EU does not have a constitution, even if this
can be argue not be true when looking upon the treaties and strong influence
that the ratifications have implied and other ruling by the ECJ. Second, the
principle and its “reference for a preliminary ruling” limits the individual
freedom of the nation states and affects the individual freedom. The EU
emergence has been accused to enlarge the democratic deficit due to the
delegation of power on a transnational level.
How the theories look upon the separation in between law and politics differ.
This can be exemplified by the different approaches they have on courts
interdependence. Since realism implies that no such separation exist on a
transnational level, and if it does it is always breakable, is there no such thing
as a separation in between law and politics. This pessimistic approach is
again coloured by the historical context of the 1940s with an ongoing war that
defiantly had break obligations. The nazitis´s revision of the constitutional law
in Germany before the World War ll, could be one of the realist’s arguments
for non-separated legal and political system. While the liberalism on the other
hand would argue that the courts are actors that operate independently and
judge according to the constitution in order no to hollow it out.
3.1 The Concentration of Power
The comparison of the both theories cannot be made seamlessly. There are
obstacles from both perspectives. But if we instead isolate the area of sphere
of investigation and only look upon power and how the concentration of the
precedence principle imply one can se a pattern of non-state actors behave to
be influential. One can clearly see the superior role of EU when looking at the
concentration of lobbyism. This creation of pluralism is an indicator of a belief
in a liberal system. A more pluralistic perspective on policy and legal
implications makes business and NGO more influential which is consequent
with the liberal theory but contradicts the realist who would that argue that the
lobbyism should be made on a national level. Today neo-liberal world, which
is driven by capitalist incentives, outdate the realist theory.
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One could also argue that the principle makes the EU legal system more
homogenous and predicable. Which could benefit businesses (and promote
the capitalist system) but affect the local responsiveness if the EU decision
does not go hand in hand with the national.
3.2 Realism as a critical perspective
As mentioned above do we live in an international economic system highly
influenced by capitalism and economic principals based on the Washington
consensus. Kant optimistic perspective on transnational governance does
therefore better explain EU emergence. By argue for a more business
friendly environment where pluralism is appreciated makes Kant´s perspective
the most relevant one to describe the emergence of the precedence principle.
That together with the rule of law and superior law that the principle implies,
the belief in a strong constitution can be argued to explain the states
behaviour. But Morgenthau’s works is not to avail; the realist theory can be
used as a critical perspective. As the neo-liberal theory is the norm in our
capitalistic system, some contemporary realists employ realist’s assumptions
and principles in their critique of international law in order to indentify the
limiters of its efficiency such that it might improve. (Snyder and Vinjumuri,
2003)
However, the realists have difficult to understand the development of the
European Community with its superior law. Nor can Liberalist fully explain
they emergence of a superior legal system with regard to its emphasis on
individual dependence and lack of a transnational government of a more
republican character with a legitimized European constitution. None of the
theories do not fully fit with the complex nature of the European Community
that has incrementally developed the precedence principle.
3.3 The Peculiarities of EU
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The EU as a form public power whose mechanism of individual and collective
accountability have long been criticized as underdeveloped to remedy its
rights deficit and to promote rights internally and externally in accordance with
consistent standards. (Cali, 2010) This is inconsistent with the liberal theory.
Who is positive towards transnational governance but emphases the
democratic part. EU deals with its democratic deficit and this is another
example to the argument that the European legal system and principles with
institutions cannot be put into the theoretical perspective without
disevergence.
Unity and authority of the EU legal system that the principle imply and the
increased burden of law in the process of legitimating a post-state polity
makes it even more relevant to the EU to have its own tools of analysis. There
are two overlapping sets of reasons for this, European supranational law
remains a relatively recent phenomenon, yet it is an area of law, which has
expanded and continues to expand and continues to expand exponentially.
(Cali, 2010) The study of EU law and its principles at the point of national
reception becomes the study of a distinctive legal hybrid and none of the
theoretical perspective is a perfect fit in order to explain the behaviour of the
member states and their incentives for the precedence principle.
Conclusion
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This paper has used an interdisciplinary approach in order to answer the
question for what incentives the precedence principal of EU law rest upon for
the member states. The paper has used two theoretical perspectives in order
to investigate the incentives, Morgentahu interpretation of realism and Kants´s
liberalism. None of the theories is the perfect “fit” for the development of the
principle. This does not imply that the theories are useless in this sense, just
that a direct application of the theory is inconsistent. Kant´s liberalism is useful
when analyzing the global transnational governance and the international
legal system as a whole but have difficulties to explain the emergence of the
EU and its legal principles. Realism and its power-oriented incentives is does
also fail to explain the development of the precedence principle. However,
realism could relevant when using a critical perspective on underlying
structures of the European legal system.
The paper concludes it would be naïve to try to put the driving forces behind
the development of the precedence principle into one theoretical box.
However, this does not imply that the definition or the problem of fit in a
theoretical context does that the EU legal system and its principles are
theoretical indefinable. The paper suggests that the explanation of EU
phenomena’s needs a distinctive legal hybrid.
Bibliography:
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Articles/Books:
Basak, Cali. (ed) (2010) International Law for International Relations, Oxford; Oxford University Press.
Jack L. Snyder and Leslie Vinjamuri (2003) Trials and Errors: Principle and Pragmatism in Strategies of International Justice, International Secururity, Volume 28, Number 3 pp, 5-44
Kant, Perpetual Peace – A Philosophical Sketch, printed in Kant – Political Writings, Reiss (ed), Cambridge University Press, pp. 93-115
Morgenthau, Hans. (1940) Positivism, Functionalism, and International Law, The American Journal of International Law, Vol. 34, No. 2. pp. 260-284
Slaughter, Anne-Marie (1995) International Law in a World of Liberal States, 6 European Journal of International Law. pp. 532
Stone Sweet, (2009) “Constitutionalism, Legal Pluralism, and International Regimes”, Indiana Journal of Global Legal Studies, 16, no 2, pp. 621-645,
Electronic Sources
Europa – Summaries of EU Legislation (2010) Precedence of European Law, [Web Page], URL http://europa.eu/legislation_summaries/institutional_affairs/decisionmaking_process/l14548_en.htm [first accessed June 2013]
Case:
Case 6/64, Falminio Costa v. ENEL [1964] ECR 585, 593
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