Understanding Threats to the EU Legal Order: A Kelsenian Account

About the event

According to Antonia Baraggia and Giada Ragone, the Polish Constitutional Tribunal’s (conditional) rejection of the primacy of EU law ‘opened a crack in the EU legal order and challenged the future of the EU as a political and legal construct.’ Similar claims regarding threats to EU law can easily be found. The issue is that, while they seek to describe the status of (EU) law, these claims seldom grapple with legal validity – a concept by which we can classify whether a particular norm or system is a legal one or not, whether it exists as law or not. This is problematic, for if we are to identify when a legal order is threatened, we must situate our findings against theories concerning the law’s existence. Indeed, just as we identify that a human being dies when some of its internal organs fail – thereby making a claim about a human being’s existence by reference to criteria of what makes it alive – so we must situate our claims regarding the death of legal orders by reference to accounts of what makes them alive. It is here that advancement in analytical jurisprudence needs to be made.

After all, this strand of legal theory claims to provide a descriptive (and sometimes even fact-oriented) account of validity. Thus, in its descriptive endeavour, we should expect it to also provide an account of how law may die, its process of decay, or, at the very least, highlight some particular internal organs without which legal order cannot persist. Accordingly, the current presentation will (i) reconstruct Hans Kelsen’s theory of law to illustrate one plausible way of understanding threats to legal order, and (ii) apply these findings to the example of apex courts challenging EU supremacy to show how we may conceive of threats to the EU legal order.

The speaker 

Oskar Polanski, PhD Researcher, Law Department, European University Institute and Visiting PhD Researcher, Edinburgh Law School

This event is hosted by the Edinburgh Centre for Constitutional Law.

This event is in-person only and is open to all to attend. No prior registration is required.