Begging the constitutional question

The doctrine of the supremacy of Community law, as has been put forward by the European Court of Justice, is not a technical legal question but touches on the most fundamental theoretical presuppositions of the legal order. As a result, the architecture of the Community legal system invites the broadest reconsideration of the concept of a positive legal order. Both the European Court of Justice and the German Constitutional Court have refused to acknowledge the nature of this problem and, by simply asserting what had to be established, have just begged the constitutional question. * I am very grateful to Kenneth Armstrong, Zenon Bankowski, Gráinne de Búrca, Michelle Everson, Imelda Maher, Hilary Hiram, Joanne Scott, Jo Shaw and Neil Walker for stimulating comments and discussion. Also to Rajan Subberwal for valuable research assistance.