Legitimacy of Supranational Law: A Pluralist Approach
Download
Read an extract
Themes
Supranational law, European Court of Human Rights, legal pluralism, legitimacy, Eugene Dupreel, human rights law, international law, European Convention on Human Rights
Reader
Abstract
Extract
of 25
Abstract
This document discusses the legitimacy of supranational law, particularly in the context of the European Court of Human Rights, and proposes a rethinking of its legitimacy through a pluralist approach inspired by Eugene Dupreel's theory.
Extract
[...] case, decided by the European Court of Human Rights on 6 October 2005, falls into this category. By condemning the United Kingdom for having generally prohibited the right to vote for prisoners, the Court triggered a symbolic and institutional confrontation with one of the founding states of the Council of Europe. What appeared as a simple reminder of political rights turned into a deeper conflict: that of a democratic state contesting the authority of a European court, in the name of its own democratic principles. [...]
[...] « What is not understood is not recognized, and what is not recognized cannot be durably accepted22. The Dupréelian thought thus allows us to go beyond a strictly legal reading of the conflict. It invites us to question the ability of supranational law to be integrated into national legal orders. In the British case, the judgment Hirst has appeared as an external norm, without foundation in collective representations. It has been perceived as a norm 'from elsewhere', imposed without dialogue or contextualization. This lack of recognition refers to a relational conception of law. [...]
[...] Legitimacy therefore does not derive from a transcendent foundation nor from a hierarchical framework, but from social recognition. In this perspective, legal validity does not precede reception: it depends on it. This conception is part of a sociological tradition of law that accords a central place to the acceptance of norms. It joins, in particular, Max Weber's analyses of legitimate domination and anticipates Jürgen Habermas's work on communicative rationality, according to which « only a norm that can be accepted by all in a rational discourse can claim legitimacy11. [...]
[...] However, this formal conception is no longer sufficient. The experience of the judgment Hirst has shown: even a legally valid norm can be socially refused if it is not understood, debated or appropriate. The top-down model of legal authority, based on imposition, is here in crisis. In this perspective, the thought of Eugène Dupréel is particularly enlightening. He recalls that « the legal order can only subsist to the extent that it is carried, supported, and ultimately accepted by those who live in it 51. [...]
[...] A norm is only legitimate if it can be justified in a social dialogue space. This joins the theses of Jürgen Habermas, for whom « the validity of a norm depends on the possibility for all those concerned to consent to it rationally in a practical discourse 5. 1.1.4 - A perspective useful for critiquing supranational law This pluralist approach proves particularly fertile in the analysis of contemporary normative conflicts, particularly between national law and supranational law. In the case of Hirst v. [...]
