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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