Not a System but an Order
Not a System but an Order
An Inter-Institutional View of European Union Law*
This chapter focuses on one of the most philosophically puzzling aspects of EU law and its relations with Member States' law: the various rival supremacy claims made by the legal institutions of Member States and the legal institutions of the EU. It suggests that, if taken at face value, the rival supremacy claims are indeed best explained by a clash between Member State legal systems and an EU legal system. That is, if each rival supremacy claim is taken as true or justified, the foundations of EU law and its relations with Member States' law are best explained in terms of the familiar idea of a legal system and the inherent conflict which arises when legal systems attempt to combine. Yet it is argued that this view is ultimately misleading, as there are good reasons not to take such claims at face value. The chapter is organized as follows. Section 1 presents and distinguishes the various supremacy claims made by the legal institutions of Member States and of the EU. Section 2 explains how the various supremacy claims are not only facts to be observed in the EU; they also reflect a distinct philosophical way of understanding law, in which law's foundational unit or home is taken to be the comprehensive, supreme, and open legal system. Section 3 attempts to demonstrate the limits of viewing EU law through the lens of a legal system, and suggests that its limits are sufficiently significant to warrant exploration of an alternative approach. Section 4 lays out in a general way the core elements of an alternative account—an inter-institutional view of law, developed in greater detail elsewhere. Finally, Section 5 applies the account to EU law and its relations with Member States' law.
Keywords: EU law, Member States, legal systems, legal institutions, supremacy claims
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