Tesi etd-09192019-103004
Link copiato negli appunti
Tipo di tesi
Perfezionamento
Autore
SCARCELLO, ORLANDO
URN
etd-09192019-103004
Titolo
Legality’s Grammar: European Constitutional Pluralism and the Limits of Jurisprudence
Settore scientifico disciplinare
IUS/20
Corso di studi
SCIENZE GIURIDICHE - Individual Person and Legal Protections
Commissione
Membro Prof. PALOMBELLA, GIANLUIGI
Membro Prof. ELEFTHERIADIS, PAVLOS
Presidente Prof. MORESO, JOSE JUAN
Membro Prof. ELEFTHERIADIS, PAVLOS
Presidente Prof. MORESO, JOSE JUAN
Parole chiave
- Constitutional Conflicts
- Constitutional Pluralism
- Legal Positivism
- Neil MacCormick
- Taricco
Data inizio appello
07/02/2020;
Disponibilità
parziale
Riassunto analitico
The thesis concerns the issue of European Constitutional Pluralism. It purports to provide a conceptualization of it and an answer to the problem of constitutional conflicts.
European Constitutional Pluralism, as an instance of the more general phenomenon of contemporary Legal Pluralism, describes the lack of an ultimate authority in the context of the relations between the EU and Member States. The uncertainty on who has the last word is both theoretically problematic, for XX legal and constitutional theory has always modelled its concepts on the hierarchical structure of the national State, and practically dangerous, because the suspension on the question of ultimate authority risks to engender legally irresoluble constitutional conflicts.
The thesis tries to provide an insight on both issues, providing a better theoretical framework on constitutional pluralism and addressing the risk of conflicts.
After some introductory remarks, in chapter 2 the debate on constitutional pluralism is reconstructed. I start from the pioneering essay by Neil MacCormick Beyond the Sovereign State and from the crucial Maastricht Urteil by the German Constitutional Court. Then I move back to present the roots of constitutional pluralism in case law (especially that of the Bundesverfassungsgericht and of the Corte costituzionale) and in legal scholarship. Later, I move forth, towards the developments after Maastricht, until the recent decisions 269/2017 and 20/2019 by the Corte costituzionale. I also introduce the normative strand of constitutional pluralism, developed by scholars such as Poiares Maduro and Kumm. These have praised constitutional pluralism’s lack of ultimate authority as the best approximation to constitutionalism in the contemporary post-national scenario.
In chapter 3, I come back to the foundation of the pluralist movement, considering the evolution of MacCormick’s thought. Following the classic divide of his work into the phase of “radical pluralism” and that of “pluralism under International law”, I claim that the first phase was influenced by Herbert Hart’s theory of law, particularly by his notion of the rule of recognition and by his understanding of legal theory as “descriptive sociology”. “Pluralism under International law”, on the other hand, is a normative theory, grounded in Kelsen’s International Monism. I ultimately claim that the latter, as shaped by MacCormick, is ultimately untenable and shall be abandoned.
In chapter 4 and 5 I try to develop the Hartian roots of radical pluralism. I chapter 4 I consider Hart’s meta-theory of law. I argue that he stood for an understanding of legal (and constitutional) theory as descriptive and practice-oriented. The roots of his meta-theory shall be recognized in Oxford and Cambridge ordinary language philosophy. As a result, he accepted an anti-essentialist account of concepts, such that to understand fundamental legal notions we shall look at the linguistic practice of participants. A crucial role here is reserved to the Wittgensteninan notion of “grammar”, as the complex set of criteria hold by participants to apply concepts within the practice. When it comes to fundamental legal notions, including pluralism and the rival notions of monism and dualism, deep political and ideological considerations have a crucial role in defining their grammar. I argue that this is open to both “sociological” description and to normative stipulation and redefinition.
In chapter 5, I apply this analysis to Hart’s pivotal notion of “rule of recognition”. I argue that it can be rephrased as the “grammar” of the concept of “legality”, subject to hard political and ideological bargains by the participants to the practice, especially officials. I furnish a list of candidates as components of legality’s grammar, whose role is to guide us in assessing the “legality” of norms: rules which identifies legal authorities and sources of law, interpretive methodologies, and criteria of preference to order both. This grammar is characterized by holism, division of labor, and, crucially, by an inevitable degree of disagreement. I argue that the possibility of disagreements on the rule of recognition, and therefore that of constitutional conflicts of the kind constitutional pluralism underlines, was already known to Hart.
Finally, in chapter 6 I apply this analysis to constitutional pluralism. Constitutional pluralism is the result of partial overlap and partial disagreement among participants, especially officials, on the grammar of legality in the European “legal space”. MacCormick’s radical pluralism had initially developed this account, but the project was ultimately dropped to embrace pluralism under International law. I recover this attempt here and, to illustrate the point, I employ some case study. The recent Taricco saga between the Court of Justice of the European Union and the Italian Constitutional Court is used to show how constitutional disagreements happen in European law. Later, I consider the Czech Landtová case to exemplify an instance of irresoluble constitutional conflict. As a result, I argue that the possibility of constitutional conflict can be explained by a positivist theory of law as partial overlap and partial disagreement on the rule of recognition (the grammar of legality), that conflicts are ultimately inevitable (both within and beyond the State), and that they do not lead necessarily to the “breakdown of law and order”, as Hart himself underlined.
European Constitutional Pluralism, as an instance of the more general phenomenon of contemporary Legal Pluralism, describes the lack of an ultimate authority in the context of the relations between the EU and Member States. The uncertainty on who has the last word is both theoretically problematic, for XX legal and constitutional theory has always modelled its concepts on the hierarchical structure of the national State, and practically dangerous, because the suspension on the question of ultimate authority risks to engender legally irresoluble constitutional conflicts.
The thesis tries to provide an insight on both issues, providing a better theoretical framework on constitutional pluralism and addressing the risk of conflicts.
After some introductory remarks, in chapter 2 the debate on constitutional pluralism is reconstructed. I start from the pioneering essay by Neil MacCormick Beyond the Sovereign State and from the crucial Maastricht Urteil by the German Constitutional Court. Then I move back to present the roots of constitutional pluralism in case law (especially that of the Bundesverfassungsgericht and of the Corte costituzionale) and in legal scholarship. Later, I move forth, towards the developments after Maastricht, until the recent decisions 269/2017 and 20/2019 by the Corte costituzionale. I also introduce the normative strand of constitutional pluralism, developed by scholars such as Poiares Maduro and Kumm. These have praised constitutional pluralism’s lack of ultimate authority as the best approximation to constitutionalism in the contemporary post-national scenario.
In chapter 3, I come back to the foundation of the pluralist movement, considering the evolution of MacCormick’s thought. Following the classic divide of his work into the phase of “radical pluralism” and that of “pluralism under International law”, I claim that the first phase was influenced by Herbert Hart’s theory of law, particularly by his notion of the rule of recognition and by his understanding of legal theory as “descriptive sociology”. “Pluralism under International law”, on the other hand, is a normative theory, grounded in Kelsen’s International Monism. I ultimately claim that the latter, as shaped by MacCormick, is ultimately untenable and shall be abandoned.
In chapter 4 and 5 I try to develop the Hartian roots of radical pluralism. I chapter 4 I consider Hart’s meta-theory of law. I argue that he stood for an understanding of legal (and constitutional) theory as descriptive and practice-oriented. The roots of his meta-theory shall be recognized in Oxford and Cambridge ordinary language philosophy. As a result, he accepted an anti-essentialist account of concepts, such that to understand fundamental legal notions we shall look at the linguistic practice of participants. A crucial role here is reserved to the Wittgensteninan notion of “grammar”, as the complex set of criteria hold by participants to apply concepts within the practice. When it comes to fundamental legal notions, including pluralism and the rival notions of monism and dualism, deep political and ideological considerations have a crucial role in defining their grammar. I argue that this is open to both “sociological” description and to normative stipulation and redefinition.
In chapter 5, I apply this analysis to Hart’s pivotal notion of “rule of recognition”. I argue that it can be rephrased as the “grammar” of the concept of “legality”, subject to hard political and ideological bargains by the participants to the practice, especially officials. I furnish a list of candidates as components of legality’s grammar, whose role is to guide us in assessing the “legality” of norms: rules which identifies legal authorities and sources of law, interpretive methodologies, and criteria of preference to order both. This grammar is characterized by holism, division of labor, and, crucially, by an inevitable degree of disagreement. I argue that the possibility of disagreements on the rule of recognition, and therefore that of constitutional conflicts of the kind constitutional pluralism underlines, was already known to Hart.
Finally, in chapter 6 I apply this analysis to constitutional pluralism. Constitutional pluralism is the result of partial overlap and partial disagreement among participants, especially officials, on the grammar of legality in the European “legal space”. MacCormick’s radical pluralism had initially developed this account, but the project was ultimately dropped to embrace pluralism under International law. I recover this attempt here and, to illustrate the point, I employ some case study. The recent Taricco saga between the Court of Justice of the European Union and the Italian Constitutional Court is used to show how constitutional disagreements happen in European law. Later, I consider the Czech Landtová case to exemplify an instance of irresoluble constitutional conflict. As a result, I argue that the possibility of constitutional conflict can be explained by a positivist theory of law as partial overlap and partial disagreement on the rule of recognition (the grammar of legality), that conflicts are ultimately inevitable (both within and beyond the State), and that they do not lead necessarily to the “breakdown of law and order”, as Hart himself underlined.
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