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The Concept of Statutory Law in EU Perspective

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The Concept of Statutory Law in EU Perspective Indiana Journal of Global Legal Studies Volume 12 Issue 2 Article 8 Summer 2005 The Concept of Statutory Law in EU Perspective Francesico Bilancia University of Chieti-Pescara Follow this and additional works at: https://www.repository.law.indiana.edu/ijgls Part of the European Law Commons, International Law Commons, and the Legislation Commons Recommended Citation Bilancia, Francesico (2005) "The Concept of Statutory Law in EU Perspective," Indiana Journal of Global Legal Studies: Vol. 12 : Iss. 2 , Article 8. Available at: https://www.repository.law.indiana.edu/ijgls/vol12/iss2/8 This Symposium is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Journal of Global Legal Studies by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. The Concept of Statutory Law in EU Perspective FRANCESCO BILANCIA* I. THE HISTORICAL-POLITICAL MEANING OF LAW IN THE CONSTITUTIONAL TRADITION OF CONTINENTAL EUROPE A. From Liberal State to the 1930s The current meaning of the political concept of law is the result of a long and complex historical evolution. The underlying premise is that law does not always follow the development of democratic values. On the contrary, the politi- cal datum of the central role of law is constant in the system of the sources of the right of the state, as law is usually the most important source. Thus, our reflec- tion must look for the political roots of the centrality of the law in contemporary legal systems. We must understand why the doctrines of constitutionalism have assigned to the centrality of the law a role and meaning of fundamental instru- ment for the democratic construction of the state's legal system. In order to narrow the scope of our analysis, I would start from the liberal state of the nineteenth century. Therefore, I avoid confronting, for example, the study of the concept of law according to the historical-political doctrines of vol- untarism (Volontarismo), or the study of the ethical-religious foundations of law-theories that we still find applied today in both totalitarian and theocratic systems. In different contexts, the law can find its foundation in institutional pluralism,' *Doctorate in Public and Constitutional Law, University of Rome "La Sapienza," 1994; Attor- ney at Law; Professore straordinario di Diritto costituzionale, University of Chieti-Pescara "G. D'Annunzio." This comment was delivered at a symposium on Back to Government? The Plural- istic Deficit in the Decisionmaking Processes and Before the Courts, June 2004, in response to Francesca Bignami, Pluralism, Corporatism and Republicanism in Domestic Public Law: The Impli- cationsfor a European Right to Civil Society Participation. 1. See, e.g., MAGNA CARTA arts. 12, 39 (1215). The Magna Carta was granted by King John in 1215 and established the seeds of the political foundations of the current notion of the rule of law. Indeed, article 12 established the principle "no taxation without representation," and article 39 based every restriction of the rights of barons on the judgment of their peers according to the law of their land. FRANCESCO BILANCIA in common law,2 or in its own representative character. But from the bourgeois state on, the law assumes the essential meaning of the political and legal center of the system of the sources of rights. As it is well known, the stabilization of the legal doctrine founded on the centrality of the political concept of law arose especially in France and Germany between the middle of the nineteenth century and the 1930s. However, the sub- stantial meaning of this political act, an act enforcing the political choices of gov- ernment, was still not the one presupposed by the contemporary theories of democracy. This is particularly true in Germany, where the supremacy of the law is due to its attribution to the state, to the sovereign body (the will), and to the supreme institutions. In the first meaning, the centrality of law is justified inasmuch as it is the child of the sovereignty of the Reich-"the law is the expression of the power of the State"' (of the Staatsgewalt)4-regardless of how the sovereign functions are differentiated and allocated by the legal system. In this context, the role of the representative body (Parliament) and of the monarch complicate the exercise of the sovereign function. While the former is responsible for defining the content of laws, the latter holds the actual power of adoption through the sanction of the act of command directed at the subjects, in the form of law. 5 The famous conflict between the Parliament and the Crown, which oc- curred in Germany in the second half of the nineteenth century, yielded the cat- 2. The laws of the Parliament themselves-or even better, of the King in Parliament-cannot be entirely compared to the laws of the continental system. Every binding act of the Parliament, in fact, even if it is not prescriptive, is reconverted according to a hermeneutic (airtight) process in the logic of the system of common law (above the mixed English Government). See Giuseppe G. Floridia, Fortuna e crisi del governo misto nella Costituzione inigese, in MATERIALI PER UNA STORIA DELLA CULTURA GIURIDICA 305 (2000). 3. Paul Laband, Das Budgetrecht nach den Bestimmungen der Preussischen Vefassungsurkunde unter besonderer Beriicksichtigungder Verfassung des Norddeutschen Bundes, in ZEIT FUR GESETZ- GEBUNG UND RECHTSPFLEFE IN PREUSSEN 625 (1870). 4. Staatsgewalt translates to the power of the State, in the sense that it is used in this paragraph. 5. The famous conflict between Parliament and Crown is comprised of two distinct events: the conflict between Landtag and Crown, 1862-1866; and the conflict between Reichstag and Govern- ment, 1878. See Carlo Esposito, Legge, in Nuovo DIGESTO ITALIANO 720 (Mariano d'Amelio ed., 1938). See also Carlo Roehrssen, GOVERNO, LEGGE, POLITICA 135 (1969) and Clementine Forte, Pre- sentazione to Rudolph Gneist & Georg Jellinek, Legge e bilancio & Legge e decreto, in CONTROVERSiE COSTITUZIONALI IN BASE ALLA CRISI DEL GOVERNO PRUSSIANO DEL MARZO 1878, at v (Clemente Forte trans., ed., 1997) (1879) on the meaning and value of "budget decision." This was the responsibility of Parliament, but it was approved in a different way than the law, which was adopted together by mmmm STATUTORY LAW IN EU PERSPECTIVE egories of formal and material law. The comparison between these two concepts will successively illustrate the interpretation of the historical evolution of the re- lations between law, parliament, and government, concerning the approval of the state budget. The political concept of state will be linked to the formal con- cept of law because "only the Sovereign or the supreme State power can issue laws."6 The circumstance in which only the sovereign or the supreme state power can adopt formal legislative acts does not theoretically follow from the concept of law, but from the notion of a state's effective establishment in a given political community. On the contrary, laws in a material sense can be qualified as all the sources authorized by the system to issue legal norms or rules-hence, also the sources of autonomy. From this context derives, as an immediate consequence, the legal relevance of the form of the act of will that integrates the law. Thus, while in a material sense, legislative right can be considered as a concept equivalent tojus scriptum, in a formal sense, such equivalence will only be true for the written law adopted on the basis of the public consensus (Zustimmung). This leads to a meaningful conclusion: laws, in a formal sense, are also those acts ascribed to the state's will (Willensakte des Staates), for which the consensus of the representative organs (the Parliament) is necessary; yet, they are acts that could not have normative content. Paul Laband claims this model has its own underlying political justification in the theory of division of powers. But, according to Laband's theory, the politi- cal concept of representation, in reality, does not assume a central role in the cat- egorization of the law, which is instead based on the mere form of the act. In fact, the word "law," in the end, assumes the mere formal meaning of an "act pro- duced resorting to a specific procedure,"' on the basis of the political representa- the King and Landtag. From this situation came the theoretical problem of the distinction between "formal law" and "material law." See Rudolph Gneist, Legge e bilancio, in CONTROVERSIE COSTITUZIONALI IN BASE ALLA CRISI DEL GOVERNO PRUSSIANO DEL MARZO 1878,supra, at 25, 36, 44, 85, 89; see also Georg Jellinek, Legge edecreto, in CONTROVERSIE COSTITUZIONAI IN BASE ALLA CRISI DEL GOVERNO PRUSSIANO DEL MARZO 1878, supra, at 230, 237, 254. In opposition to Laband, see the doc- trine of Hermann Heller, Il concetto di legge della Costituzionedi Weimar, in LA SOVRANITA ED ALTRI SCRITTI SULLA DOTTRINA DEL DIRITTO E DELLO STATo 314,340 (Pasquale Pasquino trans., 1987) (1928). 6. PAUL LABAND, DAS STAATSRECHT DES DEUTSCHEN REICHES 11 (4th ed. 1991). 7. On the conceptual difference between "law in a formal meaning" and "law in a material meaning," see also Jellinek,supra note 5, at 230, 237; Heller, supra note 5, at 314, 340. 8. LABAND,SUpra note 6, at 29, 32, 42. FRANCESCO BILANCIA tion (the Parliament) that expresses its own consensus about the content of the state's declarations of will. This value, though, results only because the laws are adopted through the sanction of the Kaiser, regardless of the content of such acts. The two concepts are radically different: one indicative of the form of the decla- ration of will, and the other indicative of its content.
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