A key aspect of my work is aimed at a re-conceptualization of the theoretical relationship between legal orders.

The relationship between international and national law has been debated for centuries. Generally, the floor is divided between dualism, as developed by Heinrich Triepel, and monism, mainly formulated by Hans Kelsen, both of which need to be reviewed critically from today’s perspective, however. In the light of major developments since their inception, I argue that these theories can no longer comprehensively explain the relationship between international or EU and national law. Still, my work is based on the conviction that a common (normative) denominator of international, EU and national law is fundamentally necessary in order to solve potential norm conflicts between different but overlapping legal orders. By contrasting with the predominant stream of (global) legal pluralism, which, in my humble opinion, is limited as it does not offer a satisfactory prescriptive account,[1] I wish to offer new theoretical insights.

In order to answer the question whether it is the responsibility of national law to determine the effect and validity of international or EU law within the domestic legal order, in a first step, I developed the theoretical concept of the law creators’ circle.[2] TREK shares its point of departure with most social contract theories. It is based on a hypothetical state imagined as a legal vacuum, coined the ‘legal desert’. However, in contrast to political philosophy, the hypothesis behind the law creators’ circle solely aims to elucidate the structural relationship between legal orders, without saying anything about or anticipating reasons in favour of how legal orders in particular or society in general should be organized (or without arguing, for instance, whether the EU has a constitution or not). The theory is thus based on an abstract definition of law (i.e. the necessary common (normative) denominator) as the binding consensus between natural persons. At its heart lie the element of consensus and the pre-legal, reasonable assumption of the pacta sunt servanda principle. Based on this abstract concept, the law creators’ circle is constituted by the creation of a single consensus. Once a legal rule has been created by a consensus, unilateral abrogation is no longer possible. TREK suggests that a smaller law creators’ circle (e.g. based on the consensus of individuals A, B and C) must not conflict with a rule of a larger law creators’ circle (e.g. based on the consensus of individuals A, B, C and D) if – and this is important – all members of the smaller circle are also members of the larger circle, i.e. the smaller circle is absorbed by the larger circle.

In a second step the theory shall be put into practice.[3] For an extensive account thereof applied to the relationship between public international law and the Austrian legal order.[4] A major future research project of mine is a doctrinal analysis of the relevant provisions at EU and national level on the basis of TREK. I am convinced that a theory-based argument analysing the relationship between EU and Member State law will fruitfully contribute to key issues in EU law such as the doctrine of direct applicability or the primacy question between EU law and the fundamental constitutional law of its member states. It could provide a convincing theoretical argumentation, solving potential tensions between the constitutional courts of MS and the Court of Justice of the European Union. For example, arguments embedded in a sound theoretical explanation may help to clarify such questions as the tension between European integration and the (German) ‘constitutional identity’ which, according to the German Constitutional Court, is resistant to integration.

In short, TREK aims to re-conceptualize the monism-dualism-pluralism-constitutionalism debate. The goal is to answer the question whether it is the responsibility of national law to determine the effect and validity of international or EU law within the domestic (constitutional) legal order or not.

[1] Working paper in preparation ‘Descriptive vs. Prescriptive (Global) Legal Pluralism: A gentle reminder of David Hume’s is–ought divide’.

[2] In German ‘Die Theorie des Rechtserzeugerkreises – eine rechtstheoretische Untersuchung des Verhältnisses von Völkerrecht zu Staatsrecht am Beispiel der österreichischen Rechtsordnung’; ‘TREK’ for short.

[3] See ibid.

[4] See ibid.