About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

75 Am. J. Int'l L. 1 (1981)
Lawyers, Judges, and the Making of a Transnational Constitution

handle is hein.journals/ajil75 and id is 7 raw text is: LAWYERS, JUDGES, AND THE MAKING OF A TRANSNATIONAL CONSTITUTION By Eric Stein* Tucked away in the fairyland Duchy of Luxembourg and blessed, until recently, with benign neglect by the powers that be and the mass media, the Court of Justice of the European Communities has fashioned a con- stitutional framework for a federal-type structure in Europe. From its inception a mere quarter of a century ago, the Court has construed the European Community Treaties in a constitutional mode rather than employing the traditional international law methodology. Proceeding from its fragile jurisdictional base, the Court has arrogated to itself the ultimate authority to draw the line between Community law and national law. Moreover, it has established and obtained acceptance of the broad principle of direct integration of Community law into the national legal orders of the member states and of the supremacy of Community law within its limited but expanding area of competence over any conflicting national law. The European judicial process, characterized by a symbiotic relationship between national courts and the Court of Justice, is a complex dialectic process-even more intricate than that of a divided-power national judicial system such as in a federation. A great variety of participants interact in a number of fora, but the dominant groups are clearly the legal elite: 1. The judges of the Court of Justice, acting as a collegium.1 2. The Advocates General of the Court, officers of the Court assigned the principal task of stating in a public session their personal, independent opinion for the benefit of the Court, not unlike the Commissaires du Gouvernement at the French Conseil d'Etat. 3. The Legal Service of the executive Commission of the Communities, headed by the Director General, which determines the position of the Commission as plaintiff, defendant, or amicus curiae before the Court.' 4. The Legal Counsel and Director General at the Council of Ministers with his staff, performing corresponding tasks for the ministers and for the complex committee system under the Committee of the Permanent Representatives. 5. Lawyers in the national ministries and other offices of the member states, who advise their governments, and in effect formulate the positions * Of the Board of Editors. I wish to acknowledge with appreciation the research assistance of Sabine Hackspiel, Cologne University, LLM University of Michigan. A version of this article was prepared as a contribution to a volume in honor of Prof. Dr. Konrad Zweigert, Director of the Max Planck Institute for Foreign and Private International Laws in Hamburg. No dissenting or other separate opinions are allowed. On the use of the term amicus curiae in this paper, see the penultimate paragraph of note 3 infra.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most