Editor's Preface

Law and Philosophy -     

The Maastricht-Urteil: Sovereignty Now

Abstract: The sovereignty issue in European law, which was recently raised again before the highest national courts, poses a challenge to legal theory. The supremacy of EC law should not be regarded as imposing a strict hierarchy within a monistic legal system. A pluralistic and interactive analysis of the relations between the legal systems of the Member States and their common system of EC law suggests instead that the highest court within each system retains interpretative competence-competence. Although pluralist legal theory therefore supports the claim that sovereignty has not passed to the organs of the Union, the same analysis confirms that sovereignty has not remained with the individual Member States either: a more subtle understanding of the meaning of sovereignty and its locus is necessary.     

Norms,Institutions, and Institutional Facts

Norms explained as grounds of practical judgment, using example of queue. Some norms informal, inexact, depend on common understanding (‘conventions’); some articulated in context of two-tier normative order: ‘rules’, explicit or implicit. Logical structure of rules displayed. Informal and formal normative order explained, ‘institutional facts’ depend on acts and events interpreted in the light of normative order. Practical force of rules differentiated; either ‘absolute application’ or ‘strict application’ or ‘discretionary application’, depending on second-tier empowerment. Discretion can be guided by values, principles standards. Pervasiveness of institutions and institutional facts, especially but not only in relation to institutions of state-law, including constitution and state-institutions. Searle's and Ruiter's theories of institution, institutional fact, considered: ‘constitutive rule’ rejected in favour of ‘underlying principle’, structure of ‘institutive, consequential and terminative’ rules explained and defended. Ruiter's conception of ‘institutional’régime' considered and adopted, validity of norms and normative 'régimes' considered and differentiated from truth of statements of institutional fact.     

Legal deduction,legal predicates and expert systems

Much of the text which follows was first presented to the Conference of the Legal Expert System Association at Meiji Gakuin University, Tokyo, in August 1987, and followed by a similar argument, slightly differently angled, at a Symposium in honour of Ota Weinberger in Graz, whose proceedings remain for the moment unpublished. I have also received valuable criticisms through discussions of the latter version at meetings of an Esprit Working Group on Foundations of Legal Reasoning convened by Dr. Tim Flanagan of Cambridge, 1988–91.