The Concept of Statutory Law in EU Perspective

I. The Historical-Political Meaning of Law in the Constitutional Tradition of Continental Europe

A. From Liberal State to the 1930s

The current meaning of the political concept of law is the result of a long and complex historical evolution. The underlying premise is that law does not always follow the development of democratic values. On the contrary, the political datum of the central role of law is constant in the system of the sources of the right of the state, as law is usually the most important source. Thus, our reflection must look for the political roots of the centrality of the law in contemporary legal systems. We must understand why the doctrines of constitutionalism have assigned to the centrality of the law a role and meaning of fundamental instrument for the democratic construction of the state's legal system.

In order to narrow the scope of our analysis, I would start from the liberal state of the nineteenth century. Therefore, I avoid confronting, for example, the study of the concept of law according to the historical-political doctrines of voluntarism (Volontarismo), or the study of the ethical-religious foundations of law-theories that we still find applied today in both totalitarian and theocratic systems.

In different contexts, the law can find its foundation in institutional pluralism,¹ in common law,² or in its own representative character. But from the bourgeois state on, the law assumes the essential meaning of the political and legal center of the system of the sources of rights.

As it is well known, the stabilization of the legal doctrine founded on the centrality of the political concept of law arose especially in France and Germany between the middle of the nineteenth century and the 1930s. However, the substantial meaning of this political act, an act enforcing the political choices of government, was still not the one presupposed by the contemporary theories of democracy. This is particularly true in Germany, where the supremacy of the law is due to its attribution to the state, to the sovereign body (the will), and to the supreme institutions.

In the first meaning, the centrality of law is justified inasmuch as it is the child of the sovereignty of the Reich-"the law is the expression of the power of the State"³ (of the Staatsgewalt)⁴-regardless of how the sovereign functions are differentiated and allocated by the legal system. In this context, the role of the representative body (Parliament) and of the monarch complicate the exercise of the sovereign function. While the former is responsible for defining the content of laws, the latter holds the actual power of adoption through the sanction of the act of command directed at the subjects, in the form of law.

The famous conflict between the Parliament and the Crown,⁵ which occurred in Germany in the second half of the nineteenth century, yielded the categories of formal and material law. The comparison between these two concepts will successively illustrate the interpretation of the historical evolution of the relations between law, parliament, and government, concerning the approval of the state budget. The political concept of state will be linked to the formal concept of law because "only the Sovereign or the supreme State power can issue laws."⁶ The circumstance in which only the sovereign or the supreme state power can adopt formal legislative acts does not theoretically follow from the concept of law, but from the notion of a state's effective establishment in a given political community. On the contrary, laws in a material sense can be qualified as all the sources authorized by the system to issue legal norms or rules-hence, also the sources of autonomy.

From this context derives, as an immediate consequence, the legal relevance of the form of the act of will that integrates the law. Thus, while in a material sense, legislative right can be considered as a concept equivalent to jus scriptum, in a formal sense, such equivalence will only be true for the written law adopted on the basis of the public consensus (Zustimmung...