Between constitutional theory, the general theory of law, or the general theory of the state on the one hand and constitutional law on the other hand, the interactions are complex. We usually perceive the general theory of law as a discipline that partly describes and partly prescribes. Its main task would be to expound theses on the nature of the State, for example, when it possesses certain essential qualities, which allow to define it, particularly sovereignty; that this sovereignty possesses, possesses itself, such or such essential quality as inalienability or indivisibility; but that sovereignty could be not only a quality of the State, but also of other beings, such as the nation, the people or certain organs of the State, the king, the parliament. From these descriptive theses, we could deduce some prescriptive consequences: for example, that laws adopted directly by the sovereign people are not susceptible to any control, that it is forbidden or permitted to delimit the transfer of certain competences to international organizations, or that it is forbidden or permitted to give precedence to international conventions over laws.

Likewise, constitutional theory would describe the objective existence of a hierarchy of norms and would affirm the supremacy of the Constitution over the law, which would lead to deduce that this supremacy implies a control of the conformity of the laws to the Constitution.

This widely held view has several criticisms.

In the first place, these theories are deprived of any empirical reference. There is no state, no sovereignty or hierarchy of norms on which we could rely to try to deduce a general theory.

If Duguy never had breakfast with a moral person, no one could therefore observe a norm or a hierarchy; there are only statements that make up the terms of the State, or of sovereignty, and that are interpreted as norms.

The various theories concerning the State or sovereignty, then, are nothing but metaphysical constructions, of which it is impossible to prove the validity, so that, when these constructions are opposed, there is no criterion by which to affirm the superiority of One over the other. This is of no importance, since, supposing that we could find the truths about the nature of the State, we could not derive from these any prescriptions, simply because from what is, we cannot deduce what ought to be.

And precisely, positive law is often different from the prescriptions formulated by this or that theory of the State. The theory affirms that the hierarchy of norms implies a control of constitutionality, but it happens that this control is not effectively organized by the Constitution or that sovereignty has some essential components, while the positive Constitution expressly authorizes the transfer of its competences to international organizations. These divergences may stem from the fact that the authorities establishing these norms refer to "a different theory" or that these authorities are determined on the basis of practical considerations, without concern for theory.

Faced with them (according to the traditional conception) we can only consider that one or the other positive norm did not recognize the true nature of the State, or of sovereignty or of the hierarchy of norms. According to some opinions of the doctrine of natural law these norms are not valid. It will be held, for example, in cases where no control of constitutionality has been organized, that some laws, despite having been duly enacted and being in force, are still unconstitutional; or that the constitutional law, adopted by direct referendum, is still contrary to the Constitution.

Some authors who claim to be positivists cannot, of course, affirm that these norms lack validity and limit themselves to formulating a value judgment on the process for which they were produced or on their content. But this judgment, although formulated in the name of the science of law, is in reality a moral or political judgment. This judgment is based on the assumption that it is wrong to establish rules that ignore the general theory of law or logic. Therefore, this judgment has no legal basis.

A truly positivist attitude in constitutional theory consists not in seeking the nature of the State of sovereignty or of the hierarchy of norms in order to try to deduce solutions, which will be compared to the practice of the authorities creating constitutional norms; but on the contrary, starting from practice, to seek to describe the theses to which positive law is linked.

It happens that these authorities officially proclaim their adherence to one or the other thesis, but it is up to the theory to make its content explicit or, on the contrary, to reveal that despite this decision, it is in fact another doctrine which constitutes the foundation of the established norms. This is the approach adopted by Carré de Malberg, for example, when he affirms that the National Assembly of 1791 was founded not on a theory of representation, as it claimed, but on a theory of the organ.

This same approach may seem useful for the analysis of the evolution of the jurisprudence of the constitutional courts, as well as that of the revisions of the Constitution. The Courts, in fact, base their decisions on doctrinal theses, regardless of whether the text of the Constitution refers to them or whether they consider that these theses express the unwritten principles of positive law. In both cases, the Courts generally give them, implicitly, a new content. If, for example, a court bases a decision authorizing positive discrimination on the principle of equality, it cannot be said that it has applied the principle of equality correctly or incorrectly, but only that the principle of equality, which forms the basis of new legal rules, must from now on be interpreted as an authorization to such discriminations. The role of the doctrine is then to find out what is the concept of equality that the new principle presupposes.

The development of international law and European integration offer a clear example of such a transformation of essential principles of public law and of the doctrines that sustain it. Glass with analyses conducted in four European countries.

It seems that this transformation reaches very deeply into at least two of the principles that are at the very foundation of the modern state, although it is not yet possible to discern their exact content. These principles, which are closely linked, are sovereignty and the hierarchy of norms.

I. Sovereignty

Have the changes in constitutional law, following the development of international law, affected the classical concept of sovereignty?

According to this classic concept of sovereignty, as expounded by Carré de Malberg in a famous phrase, this concept has three meanings.

"In its original sense, it designates the supreme character of the force of the state. In a second sense, it designates the set of powers gathered in the force of the state, and is therefore synonymous with this force. Finally, it serves to identify the position occupied in the state, the supreme holder of the power of the state and here sovereignty is identified with the force of the organ."

Two other meanings should be distinguished to clarify the third concept. The supreme holder of the force of the State may be in two different positions: he may or may not have a superior or be above all others. The second position implies the first, but the opposite situation is not true. However, one of the qualities we commonly associate with sovereignty, indivisibility, concerns only the position of the one who is above all others. Several authorities may have no superior, whereas, if we try to share the quality of being above all others no one would possess it, in reality, and it would be destroyed. Moreover, the one who occupies this position of being above all others can be an organ of the State, for example, the legislative power or the constituent power, but it can also be another real or fictitious being, the name of which this organ exercises its power, for example the people or the nation.

We therefore arrive at five meanings of the term sovereignty:

1) Independence from any external force or international sovereignty.

2) The strength of the state, i.e. the sum of all that it has been able to do.

3) The quality of the organ that has no superior, because it exercises the highest force, that is, the legislative force or that participates in this exercise.

4) The quality of the organ, which is above all others.

5) The quality of being, on behalf of which the sovereign organ (according to meanings 3 or 4) exerts its force.

These are the distinctions that make it possible to understand that it is equally true, according to the French constitutional law of the third Republic, that the parliament is sovereign, and that the people is sovereign, that sovereignty is indivisible (when it is sovereignty, according to meaning four) and that it is not at all indivisible (when it is sovereignty, according to meaning two) or even that it can be limited (meaning two, since it is a limitation of powers), but that the idea of limiting it, according to the first meaning is absurd. These distinctions also make it possible to understand that some of these qualities may have different names, while others may have the same name. Therefore, there is no difficulty in admitting that the name of international sovereignty is confused with sovereign, according to meanings 3, 4 or 5. In other words, while the word sovereignty in its first two definitions refers to types of power in the following three it refers to the quality of its bearer. That is why, according to the democratic ideology of which modern states boast, to say that the people are sovereign means at the same time that the supreme organs exercise power in their name and that they are not subordinated to any foreign force.

This scheme cannot serve as a justification for the current constitutional law, especially since the legislative power is not entirely exercised by the people or their representatives, but partly by the European authorities, from which acts can derogate from national laws. For this reason, the French Constitutional Council considered that the treaties were contrary to the Constitution and could not be ratified without prior revision.

Undoubtedly, once the revision intervenes, this contradiction disappears, as it did in Italy, as a result of the jurisprudence of the constitutional court, which considers that the Constitution authorizes the laws of execution of treaties to derogate from constitutional norms "which do not establish supreme principles and which do not confer inviolable rights". In both cases, a new constitutional norm was created to authorize the derogation, either by way of revision, expressly, or by way of interpretation.

But the contradiction between the Constitution and the treaties could only be eliminated Acosta, of new contradictions this time between constitutional provisions.

First of all, constitutional revision was necessary in France because the treaty violated the "essential conditions for the exercise of national sovereignty". According to the terms of article three of the Constitution, it is the people who exercise national sovereignty through their representatives and the referendum. Therefore, the treaty can only infringe, if this exercise is entrusted to a being other than the people or if this exercise is organized by other means. the new provision arising from the revision, is then contradictory to article three of the Constitution. Since it is an exception, it makes the thing conform to the Constitution, but it does not restore the coherence of the text. It can no longer be understood that the people exercise their sovereignty through their representatives and that the laws, which are the expression of their sovereign will, can have a value inferior to that of acts derived from treaties.

On the other hand, the wording of article three of the Constitution seems to mean that the people, through their representatives, can perform acts that are part of the exercise of sovereignty, but they cannot perform acts of disposition that are part of the essence of sovereignty.

Sovereignty. However, the violation of the essential conditions of the exercise of sovereignty cannot, according to the classical idea, be considered as the exercise of sovereignty, but only as an act of disposition. The article that allowed the ratification of the Treaty of Amsterdam was, however, adopted only by the representatives.

Thirdly, this article makes it difficult to understand article six of the Declaration of the Rights of Man, which proclaims that "the law is the expression of the general will", in other words "of the presumed will of the sovereign", i.e. of the people. If, in fact, the European authorities can produce acts superior to parliamentary laws: either the national law is no longer the expression of the will of the people or the people is no longer the sovereign.

That this supremacy has been organized by the Constitution itself does not change anything, because if the constitution is the expression of the general will, it is not the only expression of this will. According to the traditional idea of sovereignty, the ordinary law must also be so and it is so under two conditions: that it has been produced, respecting the Constitution, as formulated by the Constitutional Council, but that in the manner of the people itself or of its representatives

If this reasoning is valid in the French case, it seems that it can also be transposed to the cases of Italy and Spain.

It is still useless to limit oneself to the observation of these inconsistencies. All the provisions mentioned above were adopted in a constitutional manner, or were the subject of an authentic interpretation by the Courts. They are therefore perfectly valid and in force and positive law is not subject to any obligation of consistency. Therefore, we must seek, if there is an idea of sovereignty, to include the implicit presumption of constitutional laws, adopted by the review bodies or interpretations chosen by the Courts.

In any case, this implicit concept seems to be very different from the most officially accepted conception and is composed of two main aspects.

The first concerns the very nature of the supreme function, that which deserves to be called the sovereign function. According to the traditional idea, this is the legislative function. This means that the idea, according to which the law is the expression of the general will, and that, consequently, it can only be made by the people itself or its representatives.

Therefore, there are two possibilities:

Either consider that the national Constitution authorizes the European authorities to create legislative acts and thus creates representatives of the peoples of the Union.

Or to maintain that sovereignty is only truly exercised in the constituent function.

This second idea is in fact more consistent with the idea that, in a democratic system, representatives are elected and with the usual justification of the control of constitutionality by the theory of the "aiguilleur", especially when it resorts to the theory of the "lit de justice".

Additional explanation for the reader on the two evoked theories of French law:

In English, switchman/switcher or air traffic controller (referring to its limitation to give indications of the correct way) explained in the following way by the doctrine:

When a provision is censured for being contrary to the Constitution, the Constitutional Council merely indicates that the process used for the creation of a law is not regular, but that the same legal provision could be established by another means, for example, by amending the Constitution. In other words, the normative power of the constitutional judge becomes irrelevant vis-à-vis the constituent. The legislator will always have the last word.

This technique is called "constitutional bed of justice", thus allowing the executive and legislative branches to take up a provision previously censured by the Constitutional Council through the appropriate route of constitutional law.

End of additional explanation.

According to the theory of the fact of justice, the decision of a constitutional court, which opposes the legislator, refusing to admit the validity of a law can be overcome, CL sovereign itself, takes back the content of this law. This theory seems to imply that the only true sovereign is the constituent power, and then that the ordinary law is not really the expression of the will of the sovereign.

Under these conditions, there is no difficulty that the ordinary law can be abrogated by acts of European authorities. But the price to be paid is very high, since it must be admitted that the sovereign is not the actual people, but the people who adopted the Constitution, so that democracy is only partially exercised by ordinary legislation.

The second aspect deals with the content of the sovereign power and leads to the question, what is the power that only the sovereign can exercise and which it cannot renounce on pain of losing its sovereignty? Some constitutional courts seem to admit that secondary law abrogates the Constitution itself, except when it concerns fundamental rights or the power to rescind treaties. The sovereignty of the people is then reduced simply to national independence.

If the concept of sovereignty has been altered by European law, it is not surprising that the representatives of the hierarchy of norms are affected in the same way, because of the link between these two theories, which can be understood as two interpretations of the same phenomenon. This is why it could be argued: on the one hand, as Carré de Malberg did, that the supremacy of law is nothing more than the expression of national sovereignty or, as Kelsen did, that sovereignty is nothing more than the quality of a legal order, whose supreme rule can only find its foundation in international law.

II. The hierarchy of norms

The classical representation of the hierarchy of norms was quite simple: the Constitution, the law, the decrees. International treaties were nothing more than types of laws and that is the reason why, according to the revolutionary constitutions, their ratification was done by passing through the law and the reason (according to the later constitutions) why, if it depended on the executive power, it had to be authorized by a law.

In all countries, the new interactions between domestic law and international law have transformed this vision and raised considerable difficulties. The most important difficulties concern the relationship between treaties and domestic laws as well as the relationship between treaties and the Constitution.

Between treaties and laws, the difficulty arises from the abandonment of the lex posterior rule. According to the classical idea, a law can repeal a previous treaty, since this treaty had only the value of a law and its ratification had been authorized by a law, or had been the object, as in Italy, of a law of execution. Nowadays, treaties, or at least derived community law, have a higher authority than the authority of laws. We could therefore think that the treaty is inserted at an intermediate level between the Constitution and the law, which leads to a first paradox, if we consider that the treaty has been incorporated into the legal order, by virtue of a law. Therefore, it would seem that the subsequent law can no longer derogate a previous law. When it is a matter of community law, derived, created in the application of the treaty, then of a lower level than this treaty and the law that allowed its introduction and that is therefore subject to the same regime as the treaty itself and can then repeal the laws.

But, there is a second paradox, which derives from the consequence we give to this supremacy: The ordinary judges have the obligation, in case of conflict, to make the treaty or the rule of derived community law prevail over the law. However, they are not subject to the same obligation in case of conflict between the law and the Constitution. The rules of secondary community law are better protected than the Constitution itself, even if they have been created by virtue of a treaty that is concluded by virtue of the Constitution.

The difficulty involved in the relationship between the Constitution and secondary legislation is a major difficulty. In all countries (of the European Union), the Constitution takes precedence over the treaty, but this supremacy does not always have the same implications and the conflicts that arise are sometimes resolved in a paradoxical manner. Thus, the French Council of State may give precedence to a rule of constitutional level over an international treaty, but other courts do not, while in Italy, the laws implementing treaties (including, it seems, Community regulations) may derogate from constitutional laws. On the contrary, the Spanish constitutional court can control the acts of the public authorities even if they have been carried out in execution of community law. These relationships therefore appear to be inconsistent from at least two angles. On the one hand, a rule seems to have authorized the creation of another rule superior to itself and, on the other hand, a rule of a lower level can repeal a rule of a higher level.

Another paradox, which is not related to international law, concerns the hierarchy of norms. It is the paradox resulting from the recognition by the French Constitutional Council of the "fundamental principles recognized by the laws of the Republic" or PFRLR.

Explanation to the reader: (The PFRLR are principles based on written fundamental laws established by republican regimes in France prior to 1946 that have been continuously applied. The PFRLRs have constitutional value in France).

Here again (PFRLR), in case of conflict between a later law and an earlier law, the earlier law is made to prevail. The myth, by which this paradox is intended to be resolved, is that there is no prior law that prevails, but only a principle that the law did not create, but only recognized.

In other words, a new will is not subordinated to an older will, but the will has uncreated principles, that is to say, basically, natural, and for this reason, of constitutional rank. The myth makes it possible to preserve the hierarchy, but it does so at the cost of a double sacrifice, that of positivism and that of democratic theory.

In the case of international law, the solution is more partially similar. On the one hand, we can try to explain that the supremacy of international law is simply established by the Constitution itself, so much so that the Constitution itself remains ultimately the supreme norm, according to the doctrine of sovereignty. But we must understand what are the reasons why the Constitution accords to international law, this supremacy, it is due, as for the "PFRLR" (explained previously), to presume that international law is not the expression of a will, but the translation of some fundamental values, such as the construction of Europe, such values can only be put in a balance with values of the same level, such as fundamental rights.

However, in this case, the myth does not allow us to preserve or reestablish the hierarchy and therefore we are forced to rebuild it from scratch.

We can then try to draw from this conclusion (the conclusion that the classical theory of the hierarchy of norms does not allow to give rise in a coherent way to positive law) a value judgment on this law, and to conclude that it is not in conformity with the principle of hierarchy.

However, the hierarchy of norms is a kind of relations between norms, a mode of organization of the legal system, which we can observe and describe. It is not a legal principle, to which positive law is obliged to submit on pain of being bad law, and even if transformations of the hierarchy of norms constitute violations of logic, there is also no legal principle that obliges to submit to logic.

That said, hierarchy is a type of relationship between norms, which can take many forms. It is therefore possible to speak of hierarchy or supremacy of a rule "X" over a rule "Y" in the following cases (this list is not exhaustive)

a) If X has established the conditions for the production of Y.

b) If X has established that Y must have a specific content

c) If X has forbidden to give Y a certain content

d) If X can abrogate a to point b) while point b) cannot abrogate X

e) If in the event that Y violates (a) (b) or (c) a third standard Z orders the annulment of Y by a judge

f) If in the case where Y violated a) b) or c) a third rule Z prohibits the judge from applying Y

g) If in case of a conflict between the content of X and the content of Y, a third rule Z mandates the application of X

All these concepts of supremacy do not necessarily coincide. Thus, the laws are superior to the decrees in this sense, since the decrees cannot have a content contrary to the laws, but it is not the law that has established the conditions of production of the decree. Likewise, in systems where there is no control of constitutionality, the Constitution is superior to the law, since the latter determines the mode of production of the law and may prohibit giving it certain content, but a law contrary to the Constitution cannot be annulled.

according to the traditional idea of the hierarchy of norms, we could use as an argument the existence of a supremacy according to cases a) b) or c) in favor of the establishment of a hierarchy according to cases e) f) or g). This is the structure of the reasoning by which Justice Marshall or Hans Kelsen justify the control of constitutionality: the Constitution is superior to the law according to cases a), b), c), d); therefore it must also be superior according to cases e) (the Austrian case) or f) (the American case).

This type of argument and the confusion between the different meanings of the law, do nothing more than translate an ideology. This ideology is the democratic theory. Since the law is the expression of the will of the sovereign people, this law must be supreme in every sense of the term.

If, on the other hand, we move away from this ideology, and if we consider on the contrary that the true sovereign is not the legislating people, but the constituent people, since we attribute to the constituent the essential will to consecrate and guarantee the fundamental rights, in this way, the Constitution can organize the relations between norms, according to this or that modality, and there is no difficulty in believing that X could be superior to Y in some senses of the word (superior) and that Y could be superior to X in other senses. Even so, it is necessary to be aware that we have substituted one ideology for another.

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Original Text:

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