Jurisprudential questions

Damian Chalmers, Professor of European Law at the LSE, writes in today’s Times that there should be a British body to determine which EU laws ought to be followed and which ought not. Well, that’s what he seems to write, anyway — it’s not entirely clear.

It’s an interesting idea but Chalmers opens a can of worms, including two particularly big and succulent ones.

He queries the notion that all EU law must be treated as authoritative, asserting that “something is only authoritative when there are good reasons for obeying it.” The fact that obeying European law enables the EU to work is “not a trump reason.”

That gets us straight down to the vexed questions of what is law and when must law be obeyed. Those questions have tied various legal philosophers, like Bentham, Hart, Raz and Dworkin (the last of whom has forged a lucrative career writing about his dream judge, Hercules, and dodging all the difficult questions) in knots. Put simply, the vision of picking and choosing which laws to obey is not an attractive one.

The other big worm Chalmers’ suggestion brings to light concerns the British constitution itself. The UK entered Europe by a treaty that was given domestic force by an Act of Parliament. That Act — that British Act passed by the British Parliament — made European law supreme. In a very real sense, all European law is British law and it’s difficult to see how that could be unravelled without serious changes to the mechanism by which the UK joined Europe in the first place.

What Chalmers suggests, ironically, is to substitute the will of the British Parliament with the will of an unelected committee. A rather curious consequence that lacks a “trump reason”.