On the Role of Normative Hierarchies in Constitutional Reasoning: A Survey of Some Paradigmatic Cases

• Published date: 01 September 2018
• Author: Orlando Scarcello
• DOI: http://doi.org/10.1111/raju.12220
• Date: 01 September 2018

© 2018 The Author. Ratio Juris © 2018 John Wiley & Sons Ltd.

Ratio Juris. Vol. 31 No. 3 September 2018 (346–363)

NOTES • DISCUSSIONS • BOOK REVIEWS

O n t h e R o l e o f N o r m a t i v e H i e r a r c h i e s i n

Constitutional Reasoning: A Survey of

Some Paradigmatic Cases

ORLANDO SCARCELLO

1 . I n t r o d u c t i o n

In this art icle, the role of normative hierarchies in con stitutional reasoni ng will be

analysed. It will be argued t hat decisions that at first glance a re different actually

display deep similar ities based on common argumentative schemes. The concept of

axiological hierarchy wi ll be the keystone for casting l ight on these analogies a nd

for addressing the question of the role of norm ative hierarchies in legal re asoning.

This is fundamental in order to gain an in‐depth understanding of legal reason ing,

underline the role of judicial axiological prefere nces, and identify the results ob-

tained by granti ng preference to certain norms.

Accordingly, some fundamental concepts belonging to t he theory of

normative hierarchies w ill be introduced, and a th reefold taxonomy will be

deployed. Later, the article will focus on the concept of axiologica l hierarchy

and its internally related notion of applicabilit y. As a result, the necessary

theoretical fra mework will be outlined in order to an alyse the relevant case

law. Finally, two cases from national constitutional adjudication (the Italian

Constitutional Court) and two at the Europea n supranational level (the Court

of Justice of the European Union) will be exam ined in detail. The intention is to

cast light on the importance of ax iological judicial preferences in con stitutional

reasoning and how they ca n lead to “manipulative” decisions. Fundamental

legal arrangements, which ar e intuitively considered to be basically stable, such

as the hierarchy of legal sources, the a llocation of lawmaking competence s, or

the role of catalogues of fundamenta l rights, are indeed frequently altered by

mea ns of a xiolo gica l judi cial “mani pulat ions.” Fina lly, it wi ll be argu ed th at one

of the tasks of legal theor y is to scrutinise cases, not to just ify or condemn these

judicial operations, but to make them vi sible and therefore accountable to the

public.

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Ratio Juris, Vol. 31, No. 3 © 2018 The Author. Ratio Juris © 2018 John Wiley & Sons Ltd

Normative Hierarchies in Constitutional Reasoning

2. On Normative Hierarchies: Some Basic Tools

In order to outline a us eful theoretical framework, some fundamental concept s will

be briefly introduced. Concepts such a s validity, applicability, legal sources, and

legal norms will b e of fundamental importance for the re st of the article. In particu-

lar, they will be necessa ry to disentangle the concept of normative hierarchy

1 and to

show the similaritie s and differences among the var ious instances of th is concept.

Although they are among the most well‐k nown concepts among legal theorists, they

can easily become tricky travel companions if not adequately defined. In other

words, a brief explanation would appear to be necessary, considering that the fr e-

quent and unstandard ized use of these concepts ma kes them ambiguous and

polysemous.

2.1. Normative Hierarchy

A threefold taxonomy is proposed her e in order to clarify the concept of normative

hierarchy. 2 Some basic remarks on the conceptually close not ions of validity and

source will also be provided.

2.1.1. For mal Hi era rch y

Formal hierarchy is a relat ion between rules a nd legal texts (or legal acts). If a legal

text T

1

is to be approved following a certain procedure by a compet ent authority,

both of which are established by a r ule of change R

1

, then there is a formal h ierarchy

between the text T

1

and rule R

1

. Typical examples are the relation between rules

on iter legis and the legal act s approved in this way. Thus, a formal hierarchy exists

between the rule s of change and the changed or enacted text.

Formal hierarchy is closely linke d to the concept of formal validity.

3 A rule is

considered to be formally valid if, and on ly if, all the norms of change (Har t, 1961 ,

95–6) have been correctly considered a nd applied, that is, if all the rule s regarding

competence and procedure have been identified a nd respected. This comes close to

the concept of “validity” usually employed by Kelsen ( 1945 , 113; 1967, 232), though

Kelsen refers to formal validity (and hierarchy) as relations between norms. The

slight change in defi ning formal hierarchy and valid ity derives from Ross ( 1974 , 78),

whose notion of legal sources as mai nly written raw materials enacted by means of

specific procedures and inter preted by legal practitioners is considered essential

here (see also Raz 2009 , 48).

1 For a gene ral account, see Brunet 2013 .

2 Guastini 1994 , 217–9. Guastini us es a slightly differe nt vocabulary (“power hierarchy” for

“formal hierarchy” and “source hie rarchy” for “material hierarchy”). Furthermore, he adds a

fourth typ e of hierarchy, i.e., “logical hierarchy,” which is not relevant here.

3 Following one of the main disentang lements of the notion of legal validity, two concepts wil l

be identified: forma l and material validity. See Guastini 1994 , 212. Of course, altern ative tax-

onomies ar e possible, e.g., Wroblewski 1992 .