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21 Law & Phil. 1 (2002)

handle is hein.journals/lwphil21 and id is 1 raw text is: INES WEYLAND

(Accepted 1 May, 2001)
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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