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21 Law & Phil. 1 (2002)

handle is hein.journals/lwphil21 and id is 1 raw text is: INES WEYLAND THE APPLICATION OF KELSEN'S THEORY OF THE LEGAL SYSTEM TO EUROPEAN COMMUNITY LAW - THE SUPREMACY PUZZLE RESOLVED * (Accepted 1 May, 2001) I. INTRODUCTION The main purpose of this article is to show the explanatory power of Kelsen's theory of legal cognition by applying it to a number of controversial issues of great relevance to the legal systems of the UK and other States that have become members of the European Community (hereafter EC),1 and thus resolving a long standing constitutional and jurisprudential dilemma. Since the UK's entry into the EC and the consequent limita- tions imposed by the Treaty of Rome of 1957 (the Treaty) and the European Communities Act 1972 (the ECA) on the legis- lative powers of the British Parliament, constitutional lawyers have attempted to reconcile the notion of the supremacy of Parliament with the existence of these restrictions. It will be the main thrust of this paper to argue that such attempts have proved unsuccessful because they were not grounded in sound legal theory but on a concept of sovereignty which has not only been discredited,2 but is * I am very grateful to Francis Jacobs, Advocate General of the European Court of Justice, for his valuable comments on an earlier draft. I am also indebted to Professor Neil MacCormick for drawing my attention to his application of Hart's theory to some of the issues discussed in this article and for very helpful comments. For comments I am also grateful to Terry Woods and Cliff Snaith. Any errors remain my own. 1 The focus of this article will be European Community law, which since the European Union Treaty and the Treaty of Amsterdam has become one of the three broad categories under the general umbrella of European Union law. 2 See Herbert L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), ch. 2, 3 and 4 and Neil MacCormick, Beyond the Sovereign State, Li Law and Philosophy 21: 1-37, 2002. IT © 2002 Kluwer Academic Publishers. Printed in the Netherlands.

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