Normative hierarchies in theory and practice : the case of constitutional adjudication

Abstract

The thesis discusses the concept of normative hierarchy in the context of the interlocking between legal systems. In section 1. criticism against hierarchical, positivist characterization of legal systems in pluralistic contexts are examined. It is argued that criticism depends on an inadequate and entangled concept of "normative hierarchy". In section 2., after a quick sketch of the related issues of legal sources, validity, and applicability, an elucidation is proposed, discussing the classical distinction between formal, material, and axiological hierarchy. Relying on a speech acts philosophical vocabulary, an analysis of these instances of normative hierarchy is shaped. A more general distinction between normative hierarchies stricto sensu (material and axiological hierarchy) and lato sensu (formal hierarchy) is proposed and the idea that a merely scalar difference features material and axiological hierarchies is held. Relying on this conceptual apparatus, the concept of normative hierarchy stricto sensu is considered as belonging to the practice of legal reasoning and frequently at work also in pluralistic contexts. Criticism risen by scholars is limited to the concept of material hierarchy only. In order to support this thesis, in section 3. the proposed disentanglement is considered "in action". Relying on the heuristic value of conditionals, a sketch of arguments in which different instances of the concept of normative hierarchy are employed to support one another’s is drawn. Finally, some of these abstract conditional arguments are examined in the context of constitutional argumentation. In particular, two cases from the Italian Constitutional Court case-law (decisions 1146/1988 and 10/2010) and the European Court of Justice’s Kadi case, are examined. As a result, the analysis will show that hierarchical reasoning is recurring also in the context of pluralism.