The Jurisprudence of Constitutional Conflict: Some Supplementations to Mattias Kumm

  Mattias Kumm has developed a jurisprudence of constitutionalism beyond the State (CBS) proposing principles, to be applied by courts of both the Community and the municipal levels, about how to deal with constitutional conflicts. This CBS is supposed to be part of neither the Community nor the municipal legal systems but to emerge from a legal practice comprising the whole of Community and municipal laws. Preliminarily Kumm claims, situating himself, for argument's sake, within the framework of analytical jurisprudence, that there is no legal reason for a court not to choose a different ultimate legal rule than the one it used to adhere to. These supplementations argue that Kumm's preliminary claim is erroneous. If accepted, this argument eliminates one of the reasons for the development of CBS. Concerning Kumm's main claim, these supplementations argue that the substantive content of CBS—its principles—may well be, and indeed largely already are, accommodated within the traditional structure of legal systems founded on ultimate legal rules, and that the structure proposed by Kumm would make impossible any distinction between general and legal discourses, thereby seriously undermining the determinacy of law. It also argues that Kumm's CBS can be reconstructed, within the analytical framework, only as outright supremacy of EC law.