Pavlos Eleftheriadis

Begging the Constitutional Question

The doctrine of the supremacy of Community law, as has been put forward by the European Court of Justice, is not a technical legal question but touches on the most fundamental theoretical presuppositions of the legal order. As a result, the architecture of the Community legal system invites the broadest reconsideration of the concept of a positive legal order. Both the European Court of Justice and the German Constitutional Court have refused to acknowledge the nature of this problem and, by simply asserting what had to be established, have just begged the constitutional question.

Parliamentary Sovereignty and the Constitution

Eleftheriadis Pavlos - Professor of Law at Mansfield College, University of OxfordAdress: Oxford OX1 3TF, United KindomThe theory and practice of parliamentary sovereignty is one of the key problems of the constitutional theory and practice. The article features a critical interpretation on the basis of the comparative law methods such as uniqueness and self-sufficiency of the doctrine and practice of the British parliamentary sovereignty (superiority). The author emphasizes that these postulates supported by many legal academics including Dicey and Wade did not allow comparing Parliament with the United States Congress or the German Bundestag, whose powers are limited by their respective constitutions. Parliament in the UK appears to determine the law unconditionally and without limit. Nevertheless, a fuller understanding of parliamentary sovereignty as a legal and constitutional doctrine shows that this first impression is false. According to the author, the nature of the British unwritten constitution is entirely similar to the written one prevailing in the US or Germany. This is because the doctrine of parliamentary sovereignty does not consist in a single dominant idea but in a number of related and mutually supporting principles that constitute higher law. The way in which these principles interact is parallel to the interaction of the main clauses of the US Constitution or the German Basic Law. This analysis shows that the constitution, written or unwritten, never requires a pouvoir constituent. The principles of constitutional order are numerous, they support each other and become efficient in the process of interpretations and debates. They cannot be incorporated into an integral written document. Hence, abstract constitutional patterns are developed on the particular to general principle and not vice versa. Legal interpretations breathe life into our public institutions, which may be accompanied with dynamism and inevitable modifications. The author arrives at a conclusion that the source of constitution is represented with law originating in the combination of moral and political principles breathing life into our public institutions.

Constitutional Reform and the Rule of Law in Greece

In the area of constitutional law in Greece, where at least since 1975 there has been a well functioning democracy, the ideal of ‘modernisation’ must mean adherence to the substantive principles of legality and the rule of law as political ideals. Even though the Simitis government showed some concern for improvement in these areas, the constitutional amendment of 2001 did not attempt to tackle longstanding problems such as civil service corruption, irregularities in public procurement, the independence of the judiciary and the like. The amendment was motivated, it seems, by a more majoritarian ‘communitarian’ legal philosophy seeking to strengthen political majorities.

Philosophical Foundations of European Union Law

1. Introduction: The Puzzles of European Union Law PART I: THE LEGAL SYSTEM 2. Towards a Theory of European Union Legal Systems 3. Not a System but an Order: An Inter-Institutional View of European Union Law 4. Harmonic Law: The Case Against Pluralism 5. Judicial Dialogue in the European Union PART II: POLITICAL FOUNDATIONS 6. Deciphering the Political and Legal DNA of European Integration: An Exploratory Essay 7. Citizenship and Obligation 8. Constitutionalism in the European Union: Pipedream or Possibility? 9. Constitutionalism and the Moral Point of Constitutional Pluralism: Institutional Civil Disobedience and Conscientious Objection 10. European Demoicracy and its Crisis 11. Statecraft and the Foundations of European Union Law PART III: CONSTITUTIONAL VIRTUES 12. Precedent and the Court of Justice: A Jurisprudence of Doubt? 13. Monism and Fundamental Rights 14. European Integration and the Rule of Law in Foreign Policy 15. Solidarity in the European Union: Problems and Prospects 16. The Problem of Justice in the European Union: Values, Pluralism, and Critical Legal Justice

Constitutional Illegitimacy over Brexit

Members and supporters of the British government say that the only constitutionally legitimate course of action over Brexit after the referendum is to press ahead with withdrawal from the European Union, even if that would entail the complete severance of all ties (which we normally call ‘hard Brexit’). A more sophisticated view of the constitution, however, shows that these more or less populist arguments are false. As the Supreme Court confirmed in the recent Gina Miller judgment, the constitution did not change with the June referendum. Parliament is still supreme and determines both ordinary legislation and constitutional change. In fact, if one examines closely the claim that the referendum entails hard Brexit, it becomes obvious that this claim is false as well. The referendum opened the door for one among four different possibilities. Which Brexit option—if any—the United Kingdom should take is a matter for Parliament now to decide, following the normal processes of democratic deliberation and representation.

Two Doctrines of the Unwritten Constitution

United Kingdom Supreme Court – Brexit – European Communities Act 1972 – British unwritten Constitution – Theories of the unwritten Constitution – Royal prerogative – Constitutional instruments – Higher law – Process of withdrawal from the European Union – Rule of recognition – H.L.A. Hart – A.V. Dicey – John Finnis – ‘Rule of recognition’ – Theory of sovereignty – Common law Constitution – John Laws

A Symposium on Nigel Simmonds's Law as a Moral Idea

The main questions of jurisprudence arise out of the puzzling nature of law as both a fact and a justification. The precise way in which fact and value meet in the formation and application of propositions of law is always at the heart of legal philosophy, even though the precise answers and arguments change with time. It used to be thought that the central concerns of legal philosophy were to be found somewhere within the debate between ‘legal positivism’ and ‘natural law’ and especially in the question of the connections between law and morality. Legal positivism offered a tough-minded analysis of law, which battered the establishment and contributed to the ‘demystification’ of the law. HLA Hart, for example, wrote of ‘positivist jurisprudence, ... like Bentham’s and my own work [which] denies that there is any conceptual or necessary connection between law and morality’.1 Hans Kelsen expressed the same theoretical aim when he stated his ambition to free ‘legal science of all foreign elements’, among which he included ‘psychology, biology, ethics and theology’.2 In more recent times the disagreements between the main philosophical traditions appear less political and more clearly philosophical. This may be because the battle for reform of the law has been comprehensively won by Bentham, Jhering (2010) 1(2) Jurisprudence 241–244

The Structure of European Union Law

Is the general structure of EU law a matter determined by its own constitutional principles? Many assume that this must be the case, because this is what we regularly expect from any order of constitutional law. A more careful look at the Treaty and the case law shows that the analogy does not work. There is no single set of constitutional principles that determines the application of EU law by the member states. Each state has its own principles. This clear division of labour between EU and national law poses a serious theoretical problem to those presenting EU law as directly analogous to constitutional law. A more careful study shows that the structure of EU law is very much like the structure of international law: dualist, not monist. Nevertheless, the dualist structure of EU law does not in any sense reduce its authority or legitimacy.

Freedom as a Fact

Institutions of private law are often justified on the grounds that they allow the widest possible scope for individual freedom. Similarly, constitutional principles organising and restricting the power of the state are thought to protect freedom of individuals from state coercion. These are only two examples of the many ways in which the protection of freedom provides a justification for institutional arrangements of political power and social interaction. The distinction between private rights and public powers, which runs through the structures of the liberal state, is itself based on the imperative to preserve freedom for individuals. It is often suggested by critics, however, that this justification of liberal institutions is not as convincing as its common use suggests. This is because the liberal account of freedom presupposes a controversial, or at least contestable, account of the constitution of the self and its relation to social structures. These criticisms suggest that any theory of freedom will have to be grounded on a more fundamental set of assumptions about the exercise of free will, the nature of individual identity and the importance of social contexts.1 Within the framework of this debate, liberals and critics agree that an undertaking of other fundamental philosophical tasks is closely related to the discussion of any political theory advocating the protection of freedom.