Abstract
This chapter aims at situating MacCormick’s European constitutional pluralism in the problématique of European constitutional law. What Borowski labelled as the “European enigma” is de-coupled into two riddles, concerning the genesis of the European legal order (how what formally were international treaties could result in the establishment of a constitutional polity), and the relationship between legal orders (how Community law is granted almost unconditional primacy in European constitutional practice). The standard constitutional theories that have portended to solve these problems have failed to provide plausible answers to these two riddles. MacCormick’s constitutional pluralism broke new ground and offered a coherent re-construction of European constitutional practice from a sociological perspective. But it remains unsettled as a constitutional theory. Departing from MacCormick’s shift from a radical to a moderate pluralistic position, Menéndez tries to re-consider the key implications of European constitutional pluralism, and to apply the manifold insights left to us by MacCormick to the fashioning of a constitutional theory capable of accounting for the pluralistic traits of Community law, but without reneging on the regulatory ideal of law as a single legal system. That alternative theory is the theory of constitutional synthesis, which assigns a central role, in the legal and political process of European integration, to the collective of national constitutions, which were seconded from the entry into force of the Treaty of Paris onwards to the role of the common constitution of the Union.
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Notes
- 1.
Indeed, MacCormick and Ota Weinberger are rightly characterised as the founding fathers of the “new” institutional approach to law. See MacCormick and O. Weinberger, An Institutional Theory of Law: New Approaches to Legal Positivism, (Dordrecht: Kluwer, 1996). On the two jurisprudential traditions that these two authors represented, see Massimo La Torre in this volume.
- 2.
Ibid., p. 235 et seq. See, also, “Foreword to the Second Printing of Main Problems in the Theory of Public Law”, in: S. L. Paulson and B. L. Paulson (eds), Normativity and Norms. Critical Perspectives on Kelsenian Themes, (Oxford: Oxford University Press, 1998), pp. 3–22, especially p. 11 et seq. The very metaphor of the pyramid seems to have been coined by the French translator of the Pure Theory. This was, for once, a clear added value resulting from the sensitivity of one national tradition to specific mental and architectural forms.
- 3.
H. Kelsen, The Pure Theory of Law, especially p. 193 and p. 201.
- 4.
H. Kelsen, “The Law as a Specific Social Technique”, (1941) 9 University of Chicago Law Review, pp. 75–97.
- 5.
H. Kelsen, General Theory of Norms, (Oxford: Oxford University Press, 1991). See, also, S. L. Paulson, “Kelsen’s Theory of Law: The Final Round”, (1992) 12 Oxford Journal of Legal Studies, pp. 265–274.
- 6.
H.L.A. Hart, The Concept of Law, (Oxford: Oxford University Press, 1961), Chapters III and IV.
- 7.
Ibid.
- 8.
Ibid., Chapter V.
- 9.
On this, see T. Honoré, “The Dependence of Morality on Law”, (1992) 13 Oxford Journal of Legal Studies, pp. 1–17, and “On the Necessary Connection of Law and Morality”, (2002) 23 Oxford Journal of Legal Studies, pp. 489–95. This also entailed a renewed understanding of the point of coercion. See Hart, note 6 supra, p. 198: “Sanctions are therefore required not as the normal motive for obedience, but as a guarantee that those who would voluntarily obey shall not be sacrificed to those who would not.”
- 10.
See Hart, note 6 supra, pp. 117–121.
- 11.
Ibid., Chapter X.
- 12.
See P. Fitzpatrick, The Mythology of Modern Law, (London: Routledge, 1992).
- 13.
N. MacCormick, Institutions of Law, (Oxford: Oxford University Press, 2007), p. 24 et seq.
- 14.
Ibid., p. 21 et seq.
- 15.
N. MacCormick, “Law as Institutional Fact”, (1974) 90 Law Quarterly Review, pp. 102–129; MacCormick and Weinberger, note 1 supra; and MacCormick, Institutions of Law, note 13 supra.
- 16.
Ibid., pp. 39–49.
- 17.
MacCormick was existentially and politically interested in state forms different from that of the nation-state. The “utilitarian nationalistic” position Neil openly advocated in “Independence and Constitutional Change” was not so much interested in specific constitutional clothes as in the diversification of “real centres” of power. See “Independence and Constitutional Change”, in: N. MacCormick (ed), The Scottish Debate, (Oxford: Oxford University Press, 1970), pp. 52–64. See, especially, p. 55: “Upon this view of the matter, the real question of principle is not whether Scotland should become wholly independent or not. It is whether or not we shall choose to establish some form of separate political institutions in Scotland, and shall take a pragmatic and utilitarian view in deciding which form would be most beneficial.”
- 18.
J. Bengoetxea, “Legal System as a Regulative Ideal”, (1994) 53 ARSP, [Supplement] pp. 66–80.
- 19.
On Kelsen and the underlying normative theory to the pure theory of law, see L. Vinx, Hans Kelsen’s Pure Theory of Law, (Oxford: Oxford University Press, 2007).
- 20.
See Hart, note 6 supra, Chapter X on international law.
- 21.
See Hart, note 6 supra, pp. 119–23. The fact that the British philosopher labelled such situations as “pathological” may reveal that, while his legal theory was pluralist friendly, his political theory may not have been so. Indeed, Hart seems to have shared with Kelsen the belief that only a monistic legal order could properly ensure social integration trusted to it. This accounts for the implicit “creeping” in Hart’s theory of a series of assumptions concerning a common “cultural” code shared by judges, which plays a key role both in ensuring that one and the same rule of recognition underlies the practice of all judges, and in framing their discretion in hard cases. On “cultural” codes and judicial application of law, see K. Tuori, “Fundamental Rights Principles: Disciplining the Instrumentality of Policies”, in: A. J. Menéndez and E. O. Eriksen (eds), Arguing Fundamental Rights, (Dordrecht: Springer, 2006), pp. 33–52. What is probably lurking there is the “élitist” drive of which not even committed Labourites, such as Hart, were fully conscious at the time. See M. L. Torre, “The Hierarchical Model and H.L.A. Hart’s Concept of Law”, (2007) 93 ARSP, pp. 81–100.
- 22.
C. Richmond, “Preserving the Identity Crisis: Autonomy, System and Sovereignty in European Law”, (1997) 16 Law and Philosophy, pp. 377–420, was perhaps the most influential piece on MacCormick’s nuancing of his pluralistic position. See infra.
- 23.
See Kelsen, “Una fundamentación de la sociología del derecho”, (1993) 12 Doxa, pp. 213–256; Hart, “Scandinavian Realism”, in: idem, Essays in Jurisprudence and Philosophy, (Oxford: Oxford University Press, 1983), pp. 161–169. See, also, Owen Fiss, “The Death of Law”, (1986) 72 Cornell Law Review, pp. 1–16.
- 24.
Hart, The Concept of Law, note 6 supra, pp. 89–91 on the internal and external points of view on law.
- 25.
Kelsen, The Pure Theory of Law, note 3 supra, p. 196: “The dynamic type is characterised by this: the presupposed basic norm contains nothing but the determination of a norm-creating fact, the authorization of a norm-creating authority or (which amounts to the same) a rule that stipulates how the general and individual norms of the order based on the basic norm ought to be created.”
- 26.
Hart, The Concept of Law, note 6 supra, pp. 100–109 and 116.
- 27.
See N. M. Cormick, “The Relative Heteronomy of Law”, (1995) 3 European Journal of Philosophy, pp. 69–85.
- 28.
MacCormick, Legal Theory and Legal Reasoning, (Oxford: Oxford University Press), 1978, pp. 275–292; idem, H.L.A. Hart, (Princeton NJ: Princeton University Press, 2008) (second edition), pp. 202–6; MacCormick, Institutions of Law, note 13 supra, p. 57, p. 61 et seq., p. 238 and p. 286 et seq. This is closely associated to the central claim made by MacCormick that law is one of the many normative orders of society, and that state law is one of the many institutionalised normative orders in a given society. On the purity of the pure theory of law, MacCormick stated that “Law is not only an object of study for legal science, but it is in some form an element in the lives and actions of citizens and officials”, in: Hart, The Concept of Law, note 6 supra, p. 23.
- 29.
Institutions of Law, note 13 supra, p. 287: “Obviously, what makes them [constitutions] work is the will of whichever people conceive the constitution to be their constitution, when there are enough people, sufficiently agreed (though certainly never unanimous) about the ideological underpinnings. What they agree on, however articulately or tacitly, is a common norm that they ought to respect the constitution thus underpinned, and that anyone purporting to exercise public power must do so only in the terms permitted by the constitution.”
- 30.
H.L.A. Hart, “Positivism and the Separation of Law and Morals”, (1958) 71 Harvard Law Review, pp. 593–629, at 609 and 614, on the discretion of judges in the area of penumbra.
- 31.
On how the artificial reason of law elucidated by judges was still said to be authored by the people, see A. Cromartie, “The Idea of Common Law as Custom”, in: A. P. Saussine and J. B. Murphy (eds), The Nature of Customary Law, (Cambridge: Cambridge University Press, 2007), pp. 203–227.
- 32.
K. Olivecrona, Law as Fact, (London: Stevens, 1971) (second edition), Chapters III, IV and V. See, also, S. Castignone, La macchina del diritto: il realismo giuridico in Svezia, (Milan: Edizioni di Communità, 1974), and L. L. Hierro, El Realismo Jurídico Escandinavo, (Valencia: Fernando Torres, 1981).
- 33.
R. Dworkin, “The Model of Rules (I)”, now in Taking Rights Seriously, (London: Duckworth, 1978), pp. 14–45.
- 34.
N. MacCormick, Legal Theory and Legal Reasoning, (Oxford: Oxford University Press, 1978).
- 35.
In addition to MacCormick’s, see R. Alexy, The Theory of Legal Argumentation, (Oxford: Oxford University Press, 1987); A. Peczenik, On Law and Reason, (Dordrecht: Kluwer, 1989); A. Aarnio, The Rational as Reasonable, A Treatise on Legal Justification, (Dordrecht: Kluwer, 1987).
- 36.
MacCormick, Legal Theory and Legal Reasoning, note 24 supra, pp. 152–194.
- 37.
MacCormick, “The Concept of Law and the Concept of Law”, (1994) 14 Oxford Journal of Legal Studies, pp. 1–23, at 19 et seq; idem, Rhetoric and the Rule of Law, (Oxford: Oxford University Press, 2005), p. 189 et seq; See, also, MacCormick in this volume.
- 38.
MacCormick, Rhetoric and the Rule of Law, note 37 supra, p. 6. “Whether we hold a non-cognitivist or a cognitivist approach to morality, we will regard law as a necessary complement of moral reasoning in the integration of modern societies. The cognitivist will consider law necessary because even if there are objectively, or at the very least inter-subjectively valid moral principles, they are unfit to serve as common action norms in modern societies. As already observed, there may be a correct moral answer to each moral problem, but the limited moral faculties of human beings leave us uncertain concerning their actual content. Morality tends to be expressed in the language of principles (first and foremost, the principle of universalisability), while modern conditions call for integration through concrete rules attuned to concrete ethical and prudential questions. Furthermore, moral norms are fragile tools of social integration, given the fact that the inclination to comply with moral requirements may be undermined in absence of the insurance provided by institutions ready to coercively enforce common action norms, or, whether due to disagreement, weakness of will, or simply ignorance, substituted or replaced as a spring of action by the fear of being at the receiving end of the sanctioning power. The role of law as a means of social integration is even further stressed from a non-cognitivist standpoint, given the inexistence of objectively or even inter-subjectively valid moral principles. Under such a perspective, law is not so much a complement of morality, but the key medium which holds together a society.”
- 39.
See, in general, J. E. Fossum and A. J. Menéndez, The Constitution’s Gift. A Constitutional Theory for a Democratic European Union, (Lanham MD: Rowman & Littlefield, 2011).
- 40.
Including not only the EEA Member States (Norway, Iceland, Liechtenstein), but also Switzerland and the non-Member States which have adopted the euro as their unofficial (or even official) currency.
- 41.
There has been a “conflict of the statistics” concerning the percentage of the total number of new laws which are approved in Brussels and in national capitals. But the real issue is the substantive weight of Community law, its framing power of national political wills. On the socio-economic dimension, see R. Letelier and Agustín J. Menéndez (eds), The Sinews of Peace, (Oslo: ARENA, RECON Report 8/2009).
- 42.
Indeed, one of the leading research centres on European studies is called ARENA (Advanced Research on the Europeanisation of the Nation State). See, for example, Johan P. Olsen, “The Many Faces of Europeanization”, (2002) 40 Journal of Common Market Studies, pp. 921–952 and Europe in Search of a Political Order, (Oxford: Oxford University Press, 2006). The reader should be informed that my judgment about the importance of the centre may be clouded by the fact of having been closely attached to it for a number of years.
- 43.
M. Kumm, “Who is the final arbiter of constitutionality”, (1999) 36 Common Market Law Review, pp. 351–386, and “The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe Before and After the Constitutional Treaty”, (2005) 11 European Law Journal, pp. 262–307.
- 44.
See, for example, D. Wyatt: “New legal order or old?”, (1982) 7 European Law Review, pp. 147–166.
- 45.
The “constitutional” approach underpins the case law of the ECJ since the 1960s.
- 46.
They were partially consolidated into a single institutional structure through the 1965 Merger Treaty; structure which was re-configured in the 1992 Treaty of Maastricht and in successive amending treaties.
- 47.
A. J. Menéndez, “Taxing Europe”, (2004) 10 Columbia Journal of European Law, pp. 297–338.
- 48.
N. MacCormick, Questioning Sovereignty, (Oxford: Oxford University Press, 1999), p. 135.
- 49.
MacCormick’s theory may be said to have imposed itself as the standard theory of Community law among European scholars (although, as might be expected, not among national scholars studying European law). And even if it is improbable that the Court of Justice and the national constitutional courts will endorse it, given that their authority is closely dependent on affirming a monistic understanding of law, individual justices seem to have come to endorse pluralism in their academic writings, at the same time that pluralist scholars have become judges. Moreover, the implicit understanding of the relationships between courts seems to have come to be inspired by some form of pluralism; this is clearly reflected in the constantly repeated claim that European courts do not stand in a hierarchical relationship, but do, indeed, dialogue (or bargain) with each other.
- 50.
MacCormick, “Beyond the Sovereign State”, (1993) 52 Modern Law Review, pp. 1–18, at 5: “One thing which is necessary for jurisprudence of the philosophy of law to do in the present state of affairs is to guard against taking a narrow one-state or Community-only perspective, a monocular view of these things”; p. 6: “Instead of committing oneself to a monocular vision dictated by sovereignty theory, one can embrace the possibility of acknowledging differences of perspective, differences of point of view”; and p. 17: “Can we think of a world in which our normative existence and our practical life are anchored in, or related to, a variety of institutional systems, each of which has validity or operation in relation to some range of concerns, none of which is absolute over all the others, and all of which, for must purposes, can operate without serious mutual conflict in areas of overlap?”.
- 51.
In “The Benthamite Constitution”, now in: Questioning Sovereignty, note 48 supra, MacCormick undertakes a very revealing historical research to show that the upholding of “monism” and the rejection of “pluralism” are but the hidden inheritance of “old” natural law theories to “modern” positivism. “Old” natural law theories affirmed that natural law was, indeed, authored by God. “Modern” positivist theories continue to hold the same, only they have “secularised” god by means of replacing it by a “secular” character, i.e., the sovereign, the holder of raw power. This implies a full continuity in the assumption that a key feature of law is authorship by a concrete individual will (thus, the central role played by God, and now played by the sovereign), reflected in the tendency to reduce laws to “commands”, and consequently, to characterise law as a tool to constrain and limit action, neglects the “constitutive” aspects of law. Similarly, this hidden heritage renders us blind to the close connection between law and practical reason, and consequently, to the necessarily collective authorship of any modern law.
- 52.
Of perhaps three, if it is claimed (as perhaps MacCormick, himself, would be inclined to do) that the regional legal order also has a relevant grundnorm.
- 53.
MacCormick, “Juridical Pluralism and the Risk of Constitutional Conflict”, now in: Questioning Sovereignty, note 48 supra, p. 119: “A pluralistic analysis in either of these senses shows the systems of law operative on the European level to be distinct and partially independent of each other, though also partially overlapping and interacting.”
- 54.
Ibid., pp. 119–121, especially at 119: “Resolving those problems, or, more wisely still, avoiding their occurrence in the first place, is a matter for circumspection and for political as much as legal judgment.”
- 55.
The proposals to create specific, ad hoc bodies in charge of arbitrating European constitutional conflicts present clear pluralistic undertones. See, for example, Christoph Schmid, “From Pont d’Avignon to Ponte Vecchio. The Resolution of Constitutional Conflicts between the European Union and the Member States through Principles of Public International Law”, (1998) 18 Yearbook of European Law, pp. 415–476 and “The neglected conciliation approach to the ‘final arbiter’ conflict”, (1999) 36 Common Market Law Review, pp. 509–514.
- 56.
See note 41 supra, and “Questioning Post-Sovereignty”, (2004) 29 European Law Review, pp. 852–863.
- 57.
See A. Somek, “Kelsen lives”, (2007) 18 European Journal of International Law, pp. 409–451. See, also T. Hitzel-Cassagnes in this volume.
- 58.
As, indeed, the so-called “war on terror” has made abundantly clear, and as Neil with great civic courage reminded us from the European Parliament during the “dark years” in which the gloves came off and only a handful of just men in our institutions kept their pledge to liberty and democracy. See his Tercentenary Lecture, “On Public Law and The Nature of the Law of Nations”, available at: http://www.law.ed.ac.uk/file_download/series/14_tercentenarylecturepubliclawandthelawofnatureandnations.pdf.
- 59.
A first attempt at fleshing the theory of constitutional synthesis is to be found in my “Sobre los conflictos constitucionales europeos. Validez del derecho comunitario y legitimidad democrática de la Unión Europea”, (2007) 24 Anuario de Filosofía del Derecho, pp. 139–196. This made its way, although in a much edited version, into Fossum and Menéndez, note 39, supra.
- 60.
The idea of a supranational constitutional law which is the result of seconding national constitutions was hinted at by the European Court of Justice in Case 11/70 Internationale, par 4 when claiming that the lack of a written bill of rights in the primary law of the Union came hand in hand with an unwritten principle of protection of fundamental rights, which was filled in by reference to the “constitutional traditions common to the Member States” properly spelled out in the context of European integration (“the protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community”). In doing this, the Court was following a line of reasoning pioneered by P. Pescatore: see “Fundamental Rights and Freedoms in the System of the European Communities”, (1970) 18 American Journal of Comparative Law, pp. 343–351. On the technical aspects of legal synthesis, it must be stressed that a critical comparative approach has underpinned the case law of the ECJ since its very inception. See K. Lenaerts, “Interlocking legal orders in the European Union and Comparative Law”, (2003) 52 International and Comparative Law Quarterly, pp. 873–906. On the constitutional aspects of the idea of constitutional synthesis, see A. J. Menéndez, “The European Democratic Challenge”, (2009) 15 European Law Journal, pp. 277–308.
- 61.
The founding of the Communities implied that national constitutions abandoned their constitutional solitude as constitutions of the self-sufficient nation-state and placed themselves in the common European constitutional field. Constitutional autarchy was thus replaced by constitutional openness, co-operation and reflexivity.
- 62.
If all national constitutional norms converge, as in most cases they do, the common norm is easy to establish. The strong affinity between national and Community constitutional norms is due to the history of European integration, to the fact that all Member States are parties to the European Convention on Human Rights; moreover accession to the European Union is conditioned to candidate states indeed fitting in the constitutional paradigm defined by the common constitutional traditions.
- 63.
The term “national constitutional identity” entered the European debate in the famous ruling of the German Constitutional Court Solange I, 1974 WL 42441 (BverfG (Ger)), [1974] 2 C.M.L.R. 540, par. 22: “Article 24 of the Constitution must be understood and construed in the overall context of the whole Constitution. That is, it does not open the way to amending the basic structure of the Constitution, which forms the basis of its identity, without a formal amendment to the Constitution, that is, it does not open any such way through the legislation of the inter-State institution”. It was then propelled to the supranational level in Maastricht (resulting in Article 6.3 of the Treaty of European Union, where the principle of respect of national identities in general terms was affirmed). And in the Constitutional Treaty and in the Treaty of Lisbon, this principle was spelled out by reference to constitutional identity. On the academic debate following the Constitutional Treaty, see Armin von Bogdandy, “The European constitution and European identity: Text and subtext of the Treaty establishing a Constitution for Europe”, (2005) 3 International Journal of Constitutional Law, pp. 295–315; M. Rosenfeld, “The European treaty–constitution and constitutional identity: A view from America”, (2005) 3 International Journal of Constitutional Law, pp. 316–331; J. H. Reestman and L. F. M. Besselink, “Constitutional identity and the European courts”, (2007) 3 European Constitutional Law Review 3, pp. 177–181. In more general theoretical terms, see the interesting reflections of Gary Jeffrey Jaconsohn, in “Constitutional Identity”, (2006) 68 The Review of Politics, pp. 361–397.
- 64.
A. Milward, The Rescue of the European Nation-State, (London: Routledge, 1992).
- 65.
W. E. Scheuermann, “Postnational democracies without postnational states? Some skeptical reflections”, (2009) 2 Ethics & Global Politics, pp. 41–63; Hauke Brunkhorst, “Reply: States with constitutions, constitutions without states, and democracy – Skeptical reflections on Scheuerman’s skeptical reflection”, (2009) 2 Ethics & Global Politics, pp. 65–81.
- 66.
K. Loewenstein, “Sovereignty and International Cooperation”, (1954) 48 American Journal of International Law, pp. 222–244, especially at 233–234 (the European Coal and Steel Community), and at 237–238 (European Defence Community): Antonio Cassesse, “Modern Constitutions and International Law”, (1985) 192 Recueil, pp. 331–476; T. M. Franck and A. K. Thiruvengadam, “International Law and Constitution-Making”, (2003) 2 Chinese Journal of International Law, pp. 467–518. On European clauses in the Constitutions of Member States of the European Union, see M. Claes, “Constitutionalising Europe at its source”, (2005) 24 Yearbook of European Law, pp. 81–125, and Christopher Grabenwarter, “National Constitutional Law Relating to the European Union”, in: A. von Bogdandy and J. Bast, Principles of European Constitutional Law, (Oxford: Hart Publishing, 2006), pp. 95–144; on more recent clauses, see A. Albi, “‘Europe’ Articles in the Constitutions of Central and Eastern European Countries”, (2005) 42 Common Market Law Review, pp. 399–423.
- 67.
H. Kelsen, “Les rapports de système entre le droit interne et le droit internationale public”, (1926) 14 Recueil des Cours, pp. 227–331; J. G. Starke, “Monism and Dualism in the Theory of International Law”, (1936) 17 British Yearbook of International Law, pp. 66–81; Boris Mirkine-Guetzévitch, “Droit International et droit constitutionnel”, (1938) 38 Recueil des Cours, pp. 311–463; Umberto Campagnolo, Nations et Droit, (Paris: Felix Alcan, 1938); A. Rolin, Les Origines de l’Institut de droit international (1873–1923): Souvenirs d’un témoin, (Brussels: Vroment, 1923). A concrete application to Europe before the Second World War is documented in B. Mirkine-Guetzevicth and G. Scelle (eds), L’Union Européenne, (Paris: Librairie Delagrave, 1931). In the war period, see H. Kelsen, Peace through Law, (Chapel Hill NC: University of North Carolina, 1944); in the post-war period, see H. Kelsen, The Law of the United Nations, (London: Stevens and sons, 1950); Alf Ross, Constitution of the United Nations, (Copenhagen: Munksgaard, 1950).
- 68.
Integration through the explicit writing of a new federal constitution for the European Union may or may not have been a feasible alternative after the Second World War. It could be argued that the political conditions under which an explicit European constitutional general will could be forged were lacking, and that there was no clear idea of what the institutional and decision-making set-up of a supranational Union should look like. This was, indeed, the paradox of European integration before the European Communities were established. The need to overcome the nation-state was strongly felt for a rather long-time (stretching back to the Abbé Pierre and Kant at the very least) but an effective and democratic way of breaking away from the nation-state seemed not to be available. Indeed, the risks of opening an explicit constitution-making process were proven by the failure of the Defence and Political Communities in 1954. Synthetic constitution-making promises allow us to proceed with the process of European integration sufficiently far as to render the new supranational polity robust enough to be capable of undergoing an explicit constitution-making process. Because it has a solid (even if derivative) democratic legitimacy-basis, a synthetic constitution is one that would be expected to enact changes in the legal and political order of the political community which it constitutes.
- 69.
If all national constitutional norms converge, as, in many cases they do, the common norm is easy to establish. The strong affinity between national and Community constitutional norms is due to the history of European integration, to the fact that all Member States are parties to the European Convention on Human Rights; moreover, accession to the European Union is conditioned to candidate states fitting into the constitutional paradigm defined by the common constitutional traditions.
- 70.
Or, to put it otherwise, the obligation is not merely moral, prudential or grounded on scholarly-constructed principles, but it is, indeed, a legal obligation which derives from the best possible interpretation of the law in force in each and every Member State.
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Menéndez, A.J. (2011). From Constitutional Pluralism to a Pluralistic Constitution? Constitutional Synthesis as a MacCormickian Constitutional Theory of European Integration. In: Menéndez, A., Fossum, J. (eds) Law and Democracy in Neil MacCormick's Legal and Political Theory. Law and Philosophy Library, vol 93. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-8942-7_11
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