Supranational law: A common misunderstanding


Tim Worstall, a top British blogger and frequent visitor here, makes a mistake:


There's also an interesting thought: given that EU law takes precendence over UK law, just what use is such a constitution [i.e. a written constitution for the UK]? I think it is only Germany which has said that, actually, no, whatever the EU might think, the German Constitution is the primary law in that country and where there is a conflict, the EU law loses. Would we do the same?


The answer is no. No European Union country would - including the Germans - and the reason is simple: they can't. If it was possible for a country to flout supra-national (in this case EU) law at will, what would be the point of talking about supranational law in the first place?

This principle is well understood in almost every other context where it applies. The City of London has no power to repeal income tax legislation imposed by the national government. If it could, having a national government would be redundant: any local authority or individual who didn't like a particular law would institute their own. A 'law' that's worth the name has to be binding for all the parties it applies to, and so it's impossible for state law to take precedence over federal law, local law to supercede national law and so on.

The extent to which this seemingly simple point is misunderstood in the context of the European Union is a source of constant astonishment for me. I don't think a similar misunderstanding arises in the US regarding state and federal law - and my American readers can correct me on this.

The moral of the story? The European Union is a continuing communications disaster; and European citizens are not particularly bothered advocating mathematical impossibilities.

2 comments:

  1. Tim Worstall Says:

    I take your point but...

    The German Constitutional Court (whatever it's called) has, I think, stated that where EU law calls for a breach of the German constitutional law, then it is the EU law that must be changed, not the German constitution.
    On the basis that EU law is imposed by treaty, whereas the constitution is more basic than that perhaps?
    Or another way of looking at it, that a treaty cannot be used to impose a breach of constitutional law: very much the problem over the Extradition Act with the US. Americans' cannot be extradited to the UK on the same basis that UKites can be to the US because the US courts take the view that said treaty violates basic constitutional protections and therefore cannot be used in the US.

    I'm well aware that EU law does over ride domestic law and the question I was trying to raise is, will a UK Constitution lead to somthing like the German or US situation?

  2. Dave Says:

    Surely no EU law is actually law in the proper sense because there is no means of enforcement, given the sovereignty of nations. Therefore, when we talk about EU law, it is in rather optimistic terms (just as we do about the UN). Surely national law precedes international treatises, just as natural law precedes national.