2 Introduction
become the most diffuse conceptualization of the interconnection between distinct
legal regimes.
6
What these conceptualizations have in common is a focus on the incompati-
bility between this new legal world, crowded by non-state actors, and the classic
explanation to which lawyers are used, something that we may define the ‘standard
theory’ and that was developed by thinking about States in the first place. Any
norm must be directly or indirectly reduced to a single, unifying norm on top of
the pyramid. Lower administrative decisions, for instance, may be validated by, say,
executive regulations, while norms on marriage may be part of a country’s civil
code. Higher norms must be respected for the lower provisions to be valid. Higher
‘sources’ of law must be themselves consistent with the formal and substantive limits
enshrined in even-higher sources, such as the constitutional norms on iter legis, until
a basic, ultimate norm is reached.
The ultimate norm is unique in its self-validation: there can be only one norm
that validates itself, that is autonomous. Here autonomy means unfoundedness or,
better, ‘self-foundedness’.
7
While it makes sense to ask why administrative decisions
are valid law, there is one norm with a special and self-standing foundation. Only
norms reducible to the one ultimate norm are binding and valid, while what is
outside will not be considered part of the law. As the standard theory goes, the
ultimate norm performs a twofold function: unifying the system and providing a
criterion of identity (two norms belongs to a certain system, i.e. are valid within it,
if it can be tracked back to the same basic norm).
8
These views were expressed with
some nuances by prominent scholars: for instance, by Joseph Raz through the idea
supremacy of legal system,
9
by Norberto Bobbio when explaining the ‘unity’ of
law,
10
and most famously by Hans Kelsen when introducing the idea of grundnorm,
the presupposed norm which validates the entire legal system.
11
Here is the reason why legal pluralism and other theories of the complexity of
contemporary law were and are so much debated: they insist that this salient aspect
of the standard picture is incorrect. As a matter of fact, they claim, we experience
a variety of legal systems that de facto coexist and that are not ultimately validated
by the same and single basic norm. These legal systems are autonomous and sim-
ultaneously claiming authority over the same territory or population. This is the
6 Inter alia, see John Griffiths, ‘What Is Legal Pluralism?’ (1986) 18 The Journal of Legal Pluralism and
Unofficial Law 1; Sally Engle Merry, ‘Legal Pluralism’ (1988) 22 Law & Society Review 869; Paul
Schiff Berman, ‘Global Legal Pluralism’ (2007) 80 Southern California Law Review 1155.
7 Giulio Itzcovich, ‘Legal Order, Legal Pluralism, Fundamental Principles. Europe and Its Law in Three
Concepts’ (2012) 18 European Law Journal 358, 361–362.
8 Julie Dickson, ‘Towards a Theory of European Union Legal Systems’ in Julie Dickson and Pavlos
Eleftheriadis (eds), Philosophical Foundations of European Union Law (Oxford University Press 2012) 37.
9 Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford University Press 1979) 118–119.
10 Norberto Bobbio, Teoria dell’ordinamento giuridico (Giappichelli 1960) chapter 2.
11 Hans Kelsen, General Theory of Law and State (Transaction Publishers 2005) 115–122. Kelsen’s
theory is analysed in more detail in Chapter 3. So is H.L.A. Hart’s rule of recognition, discussed in
Chapters 3 and 4.