Supranational law revisited: A reply to Tim and Dave

There were a couple of interesting points raised in response to a previous post on supranational law. Here is Tim Worstall:

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 something like the German or US situation?

Any UK constitution, if there ever is one, will take its rightful place above UK law and below EU law and other international treaties the UK has signed. The German constitution is no different: Germany may try and argue against instituting a certain piece of EU legislation that goes against the German constitution or, if that's not possible, it may choose to ignore that specific piece of legislation and face the consequences of breaking EU law. There are many examples of EU countries consistently refusing to enforce certain pieces of EU legislation, and they duly pay the resulting fines as specified by the EU. An individual may choose to pay parking fines rather than use public transport, but this does not mean he is above parking law.

As for the UK-US Extradition treaty, keep in mind that it was only recently ratified by the US, while the UK unilaterally chose to enforce it earlier than the Americans did. At any rate, my understanding is that the US is not flouting the treaty: it just made sure that the requirements imposed on it were in line with its constitution. If it were indeed the case that its constitution did not allow it to enforce the treaty, it would be the UK's right to refuse to honour its part of the deal too, and the treaty would no longer have any legal force.

Approaching the issue from a different angle, Dave also makes an interesting remark:

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.

The EU has a variety of means of enforcement, ranging from fines to expulsion from the union itself. Of course, at any point in time any country can choose to renege on a treaty/law, but then it would have to face the consequences, whatever these are. This is also the case for lower-level authorities or individuals who may choose to break national law. From a moral point of view, you may be right: any entity can flout a law it is subject to following its own morality or, in the case of countries, legal system. But from a legal perspective, my point still stands: it is absolutely impossible for a lower-level entity to legislate in contradiction to a higher-level law.

One more quick point is in order before leaving this post. While it may seem that I am eager to pick on Tim Worstall, I have to make clear his blog is great, and I am one of his most loyal readers. I don't always agree with everything he says, but in most cases he has a good point - and a unique way of expressing it. Furthermore, his ability to maintain a high level of quality while being probably the most prolific econ-blogger around never ceases to amaze me. Tim, keep up the good work - and I will keep trying to get to the bottom of your arguments.