The concept of "legal system"
as a tool for legal argumentation in the EU :
an analysis of the EU legal actors' and scholars' discourses
– Research project –
LANDAIS Guillaume
2nd year PhD researcher, Law Dpt.
European University Institute (Florence)
Supervisor : Prof. Giovanni Sartor
Topic, research questions
My research aims at describing the influence of the concept of “legal system” on the legal
institutional actors (i.e. the law creating/applying organs) of the law in the European Union (EU)
and on EU law doctrine. It focuses on the different conceptions of what is, or should be, a “legal
system” for these actors and scholars (i.e. the meaning(s) they give to the expression “legal
system”), on how and why they use the concept of “legal system” in their discourse, on the function
it plays in it, and on the role of such a discourse in the construction of the EU as a legal system.
The study is based on the influence of this concept only on the discourse of legal
institutional actors and scholars of the law in the EU when, on the basis of the concept of “legal
system”, they assume and justify legal decisions on the nature of the law in the EU and the nature
of the legal relationship between EU’s and Member states’ institutions. Thus, I do not aim at
addressing the connection between their political attitudes, or their social background, and the
political orientation expressed by their decisions. I rather aim at addressing the role of the concept
of “legal system” in legal argumentation and reasoning, i.e. at studying, for instance, how this
concept is used by the European Court of Justice (ECJ) in order to justify a particular legal decision
in a judgment, regardless of the legal outcome, or similarly the way in which it is used by academic
writers to support particular interpretations of EU law.
My object is hence constituted by legal discourses, understood here as written sources of law
(as judgments, constitutions, treaties…), the discourse of the law creating/applying organs, and the
written comments made by the legal doctrine on these organs' discourses and sources, in a particular
legal field : the law in the EU. By “law in the EU”, I refer to the positive law created and/or applied
by the EU's and the Member states' institutions, and the legal relations between the former and the
latter.
In accordance with methodological legal positivism’s principles, 1 my aim is merely
descriptive. I do not aim at advancing particular doctrinal theses about what the EU, and its
relations with the Member states, should be.
Relevance of the topic, problems solved
The law in the EU is relevant for a study focused on the influence of the concept of “legal
system” on legal discourses2. Indeed, the sui generis legal nature of the whole formed by the EU
and the Member states, and the complexity of their legal relations are both often expressed in terms
of “legal systems” nature or relationship by the doctrine 3 and by the EU’s institutional actors,
1
2
3
As defined by Norberto Bobbio, who identifies three types of “positivism”, one of these being “methodological” as
it characterizes an approach of law where law is described with axiological neutrality, in accordance with ethical
non-cognitivism and a strict separation between value and fact judgments. See Norberto Bobbio, Il positivismo
giuridico : Lezioni di filosofia del diritto, Giappichelli, 2nd ed.,1979, pp. 151-154 and 280 ; Norberto Bobbio, Essais
de théorie du droit, Bruylant-L.G.D.J., 1998, p. 24.
“Legal system” or “legal order”. I consider both expressions as synonyms.
For examples of such uses by scholars, within the Constitutional pluralism doctrine, see Neil Walker, “The idea of
constitutional pluralism”, The Modern Law Review, Vol. 65, n° 3, May, 2002, pp. 317-359 ; Mattias Kumm, “The
jurisprudence of constitutional conflict : Constitutional Supremacy in Europe before and after the Constitutional
Treaty”, European Law Journal, Vol. 11, n° 3, May 2005, pp. 262–307 ; Miguel Poiares Maduro, “Contrapunctual
Law : Europe's Constitutional Pluralism in Action”, in Neil Walker (ed.), Sovereignty in transition, Oxford &
Portland, 2003, pp. 501-537. Or, see Neil MacCormick, “Beyond the Sovereign State”, The Modern Law Review,
mostly the ECJ.4 This point is also linked with the importance of the concept of “legal system” itself
for lawyers and scholars.
Indeed, within the legal positivist tradition of Kelsen and Hart, the concept of “legal system”
is used as a tool to provide a definition of what is law. The systemic nature of law allows for the
assumption that the legal character of a particular norm comes from its membership to a legal
system. This leads to a focussing of studies of the legal nature of some normative production
entities (such as the EU or the Member states) on the norms regulating their “identity criteria”, 5 i.e.
the norms which allow knowing which other norms belong to one entity or another. Furthermore,
within a pluralist framework, there is a large number of issues in terms of legal relations between
different legal entities determining their own membership criteria. On these points, the EU is a
source of numerous issues concerning its legal nature and the legal relations between the different
law creating/applying organs within it. In the creation and the application of EU law, institutional
actors and scholars use in their discourses the concept of legal system to deal with such issues.
From a descriptive point of view, it can be said that the concept of “legal system” is an important
tool for EU institutional actors’ and scholars’ understanding of the law in the EU. They do use it in
their work, and it has an influence on their discourse.6 I aim at determining with precision the nature
of such influence.
Most of the EU law literature dealing with the concept of “legal system”, and the law
creating/applying organs, presuppose both the Member states and the EU as already being legal
systems, and their legal relations as intersystemic. 7 They rarely provide a definition of what is
meant by “legal system”, even if the signification of such an expression is far from being obvious.
Further, if “legal system” is just used as a synonym of “domestic law” or “European law”,8 we may
wonder whether this concept plays no relevant role in legal discourses, and even whether we should
abandon it, following the suggestion of Ockham’s razor. Nevertheless, I believe that the concept
does play a specific role in the creation and application of the law in the EU and in the literature
dealing with it : important ECJ cases on the relations between the EU and the Member states are
based on an argumentation in terms of relations between legal systems, 9 and numerous scholars
comment on the legal relations of, and the nature of the whole formed by the EU and the Member
states using such a concept…10 There is a need for conceptual clarification of these uses in legal
discourses, insomuch as there are few studies dealing with it.
Hypotheses and quick presentation of methodology
My research assumes two main hypothesis : firstly, that such an influence of the concept of
“legal system” affects the discourses on the nature of the law in the EU and on the legal relations
4
5
6
7
8
9
10
Vol. 56, n° 1, January, 1993, pp. 1-18 ; Julie Dickson, “Towards a theory of European Union legal systems”, in Julie
Dickson, Pavlos Eleftheriadis (eds.), Philosophical Foundations of European Union Law, Oxford, 2012, pp. 25-53.
For instance, during the so-called “constitutionalisation” process of EU law, the ECJ has already considered that the
EU constitutes a “legal order” (Case C-26/62 Van Gend en Loos [1963] ECR 1), or that primary legislation created
“its own legal system” (Case C-6/64 Flaminio Costa v E.N.E.L. [1964] ECR 585).
The expression is from Raz, cf. Joseph Raz, The concept of a legal system, Clarendon Press, 2nd ed., 1980, pp. 187202.
MacCormick is categorical on that point : “The idea of system is an idea that plays a crucial structural part in the
argumentation, the discourse”, cf. Neil MacCormick, “Beyond the Sovereign State”, The Modern Law Review, Vol.
56, n° 1, January, 1993, p. 10.
For an overview on that point, see Giulio Itzcovich, “Legal Order, Legal Pluralism, Fundamental Principles. Europe
and its Law in three concepts”, European Legal Journal, Vol. 18, n° 3, May 2012, pp. 358-384 ; Julie Dickson,
“How many legal systems ? Some puzzles regarding the identity conditions of, and relations between, legal systems
in the European Union”, Oxford Legal Research paper series, n° 40/2008, Oct. 2008.
In the Italian legal culture, Riccardo Guastini states that “legal system” is commonly used by lawyers as a synonym
of “law”, cf. La sintassi del diritto, Giappichelli, 2011, p. 227. On the use of “ordinamento giuridico” as a synonym
of “diritto”, see also Norberto Bobbio, Teoria dell'ordinamento giuridico, Giappichelli, 1960, p. 3.
For instance, in Van Gend en Loos, quoted above, this is because the ECJ considers that the then European
Community (EC) is a “legal order” (or “legal system”, synonym as explained in the May paper) that Article 12 EC
Treaty has a direct internal effect and can be invoked by individual before Member states' courts.
The Constitutional pluralism doctrine is here also a good example.
between the EU and the Member states. These discourses constitute then a main object for the
study.
Secondly, I assume that such influence is mostly based on a legal positivist understanding of
the concept of “legal system” as framed by Kelsen and Hart. Such hypothesis is a starting point, and
does not exclude that the views of other authors will be emphasized, such as Neil MacCormick or
Robert Alexy who have adopted non-positivist or post-positivist approaches to law. Thus, I shall
examine whether other views than Kelsenian and Hartian on the concept of “legal system” may
have been adopted, and have an influence in a given legal discourse, such as the idea that a legal
system necessarily includes some fundamental rights or a certain “minima”.
The analysis of how the EU’s institutional actors and scholars use the concept of “legal
system” pertains to a kind of inquiry into legal discourse (of its argumentation, justifications and
reasoning) of a long tradition in French and Italian legal theory.11 It aims at providing a better
understanding of positive law by using legal theory. Argumentation is here understood as a mere
function of a creative process of interpretation, which shows that a certain concept may play a role
in the creation and the application of the law in the EU by providing resources for such an
argumentation, this is to say a framework for judicial interpretation, whose contours and content are
determined and controlled by judges. I aim, in particular, at studying the evolution of such contours,
the argumentative possibilities and limits of the concept of “legal system” as a resource for
argumentation, showing evolutions, breaking and convergence points in the discourses of the legal
institutional actors and scholars of the law in the EU. Such a legal discourse analysis also considers
scholars’ discourse as an object. In this sense, it may contribute to the understanding of the creation,
interpretation and application of the law in the EU, and of its construction as a legal system.
Present state of the research
I firstly focused on the theoretical foundations of the concept of “legal system” in legal
theory, providing the thesis framework of analysis by analysing and presenting such a concept in a
descriptive way. The analysis provided the tools to understand, clarify and identify then, in their
discourses, the EU’s legal institutional actors’ and scholars’ assumptions on, and conceptions of
what is a legal system. Among the different approaches, I emphasized only the legal positivist
tradition, assuming that it has influenced for the most part European legal cultures, 12 more precisely
the conceptions that legal institutional actors and scholars of the law in the EU have on what is, or
should be, a legal system. Among others, the two most relevant theorists were studied : Hans Kelsen
and H. L. A. Hart.
I notably addressed the following issues : what is a legal system for them ? Which definition
did they give to the concept of “legal system” ? What differences and resemblances do both
definitions have ? Which other concepts, such as “state”, “efficacy”, “sovereignty” or “validity”, do
they use in order to define the concept of “legal system” ?
Finally, since the thesis aims at bringing law theory in the context of the law in the EU, I
also assessed the relevance of Kelsen’s and Hart’s theories in such a context. For instance, Kelsen’s
monism may be considered as not relevant for an analysis of legal discourses on the law in the EU
with the Kelsenian concept of “legal system”, since the EU’s legal institutional actors’ and scholars’
self-understandings of the EU and the Member states mostly assume that these constitute different
legal systems.13
11
12
13
I mainly refer to Giovanni Tarello, Norberto Bobbio or Riccardo Guastini in Italy, and in France to Michel Troper
and in general the work now led by Nanterre’s legal theory research center.
Giulio Itzcovich, Teorie e ideologie del diritto comunitario, Giappichelli, 2006, p. 29. Kaarlo Tuori gives details on
what would be a legal culture, including in its content general legal concepts, and doctrines of legal sources inspired
by Kelsen and Hart, cf. Kaarlo Tuori, Toward a Theory of Transnational Law (a very first draft, Helsinki, 26 August
2010), from p. 22.
Such a pluralist framework is called by Julie Dickson the “27+1” model, cf. Julie Dickson, “Towards a theory of
European Union legal systems”, op. cit., p. 47. See also footnotes 2 and 3.