This chapter puts the developed theory to the test. First, after outlining the most important case law of the CJEU on the relationship between EU and Member State law, which has introduced primacy of EU law (also over Member State constitutional law) and the doctrine of direct effect, this chapter also displays the most important judgments by Member State constitutional courts generally holding that there are limits to the primacy of EU law. After analyzing the most important theoretical conceptions and doctrines in literature addressing the difference between the CJEU and the Constitutional Courts of some Member States, this chapter shows how consent-based monism can provide for relief. According to consent-based monism, the EU is the larger circle with regard to its Member States. All EU Member States in turn are independent smaller circles which are also part of the EU circle. The EU competence regime is decisive in this regard. It is vital to pinpoint exactly which competences have been shifted to the European level. According to consent-based monism, an “integration resistant core” must not violate any consensus that has been obtained at the level of the larger EU circle. The larger circle must not autonomously add competences without authorization by all of the smaller circles.

This chapter establishes the theory of consent-based monism. The definition of law as well as its origins start for the purpose of this book in the “legal desert.” The legal desert is to be understood as a legal vacuum, a neutral, prelegal status without any further specifications. As we are not focusing on how a just society can be conceived, the following outline will suffice: in the legal desert, a consensus between two or more individuals is widely considered to be the possibility that allows the establishment of a binding legal rule to organize social life. Consensus is thereby understood to serve as a tool for unifying individual interests and does not aim to establish any values or tools that might indicate how a just society should be organized. Choosing this basis aims at modeling the structural relationship between international, EU and national law without saying how society or the State or a supranational organization should be organized (or without arguing, for instance, whether the EU has a constitution or not). This is illustrated by figures, which graphically display the most important consequences of structurally ordering the relationship between legal orders according to consent-based monism.

This chapter critically reviews dualism, as developed by Heinrich Triepel, and monism, mainly formulated by Hans Kelsen. It argues that these theories can no longer comprehensively explain the relationship between international and EU or EU and national law and that, due to their emergence almost a century ago, these theories must be understood in their historical context. Historically, dualism was progress as the separation of international and national law helped international law become independent. Thus, dualism liberated international law from being understood as “external State law,” and was even referred to as a “cleansing thunderstorm” by the monist Alfred Verdross. The main characteristic of monism is the assumption of a single unified legal system. Kelsenian monism must face the criticism of having a highly fictitious understanding of the world: nothing less than the “unity of the legal world order” is proclaimed. To depict the most important assumptions of Kelsenian monism, this chapter looks into the Kelsenian adherence to neo-Kantian epistemology, and shows that this understanding refers to a very specific philosophical position, which has been rightly criticized by many philosophers.

The final chapter looks at the relationship between international and EU law. Also for this relationship it is decisive to, first, clearly identify how the EU can establish a consensus at the larger international level. This implies, on the one hand, that the EU is a subject of international law (Article 47 TEU and Article 335 TFEU) and, on the other hand, that the EU is competent to act concerning the subject matter (Article 3–6 TFEU). As both conditions are clearly satisfied by now, it is necessary to find out which organ is authorized to conclude an international norm (Article 216–219 TFEU). Second, it is important to determine the content of the consensus. This interpretation process is primarily the task of the level at which the consensus has been agreed. This is the international level. Third, this chapter holds that the effect of this consensus on the level of the smaller circle depends on whether the norm of the international circle is solely applicable, directly applicable or individualizing. This is demonstrated in this chapter by looking more closely at how the effect of an international treaty and customary international law unfolds within the EU legal order.

The fourth chapter offers an intermediate conclusion. Despite all of the criticism dualism and monism have faced, their persistence is remarkable. Both are still referred to in many textbooks, they are present in case law and in scholarly work. Also in practice, many (national) legal orders are still often referred to as being “dualistic” or “monistic.” Thus, there is a need to make the critical points as clear as possible in order to explain why they – as originally conceived – are of no help in answering the question posed by this book. Moreover, the preceding chapter holds that global legal pluralism cannot offer a satisfying normative account for norm conflict resolution between international, EU and national law either. Hence, prescriptive proposals to solve legal conflicts arising from different legal orders on the global plane are better not termed “pluralistic.” Rather this chapter suggests that it is more precise to refer to a necessarily common framework that addresses the question of how those conflicts should be resolved together or at least in a way acceptable to all parties.

In this book I have argued that consent-based monism provides a theoretical foundation for finding a decisive source in a norm conflict situation. It is, however, important to emphasize that I do not intend to offer an absolute and invariable solution which fits any norm conflict arising between overlapping international, EU and national legal orders. In short, consent-based monism aims to give consideration to the complex and divergent structures of international, EU and national law. Consequently, it is important not to limit the scope of the theoretical background of the relationship between international and EU or domestic law by pressing international, EU and national law into the straitjacket of a certain, predetermined legal consequence. The relationship between international, EU and national law does not follow a uniform (political) order – for example, one legal order – yet, nowadays, international, EU and national law are not completely alien to each other.1 This is in sharp contrast to old theories such as dualism and Kelsenian monism, which are considered to be incapable of coping with the major developments in international, EU and national legal orders since the inception of these grand but old theories. This important difference sets consent-based monism apart from still prevailing theories such as Kelsenian monism and dualism. While the predominant stream of global legal pluralism is also restricted when answering the question behind this book as it does not offer a satisfactory normative account, global constitutionalism suffers from major shortcomings too. Global constitutionalism presumes too many substantial values for the envisaged common normative denominator to be a helpful concept for the relationship between international, EU and national law. While global constitutionalism cannot carry the “burden of universality,” with constitutional pluralism we are likely to end up in a “constitutional stalemate.” In contrast to global legal pluralism, which was said to provide for a descriptively but not prescriptively satisfying account, consent-based monism offers a theoretical explanation of the structural relationship between international, EU and national law.

This chapter argues that neither global legal pluralism nor global constitutionalism can properly answer our question of how we can know who has the final say on the relationship between international, EU and national law. Most advocates of global legal pluralism do not sufficiently distinguish between the description of factual developments, and, as a different issue, the question of how we ought to deal with or even solve legal conflicts (based on a (common) framework) resulting from plural, overlapping legal claims. Universalist solutions, as presented by global constitutionalists, are likely to fall short of acknowledging the inevitable restrictions of context which are in place when dealing with legal norm conflicts on a global scale. Global constitutionalism has to face the burden of universality, which is an unsurmountable challenge (except for some very fundamental norms, namely ius cogens or a thin layer of global constitutionalism). With constitutional pluralism, however, we are likely to end up in a “constitutional stalemate.”

This chapter holds that the CJEU follows two diametrically diverging doctrines regarding the relationship between international and EU, as well as EU and Member State law. From a theoretical perspective this is inconceivable. One and the same organization cannot follow two different approaches. However, from a pragmatic perspective, this chapter acknowledges that this Janus face of the CJEU is quite understandable. Autonomy understood as monism, on the one hand, is an expression of legal unity, which is absolutely necessary for the EU to safeguard its integration process. On the other hand, autonomy expressed as dualism helps to secure the stability of this integration process by separating the EU legal order from far-reaching international influences. However, at the same time, autonomy cannot provide for an adequate replacement of monism and dualism.

ALTHOUGH THE NUMBER of border police officers who transferred to the army never reached the levels predicted by Gerhard Matzky, the strength of the BGS plummeted. More than 9,572 border police offi-cers transferred to the army, leaving a total of 7,042. Besides the obvi-ous shortage in manpower, the army requisitioned the majority of BGS equipment and took over its best barracks, leaving entire units to billet in local hostels or temporary accommodations. It was questionable whether the BGS would ever recover. Interior Minister Schröder tried desperately to reassure his personnel and their commanding officers that the orga-nization could expect a secure future. He wrote to Konrad Adenauer and implored him to publicly recognize the BGS as a way to boost the men's faltering morale. Adenauer did his part, and in an open letter to the organization, thanked its staff for their loyal service, but also reas-sured them that the nation still needed them. The chancellor affirmed that “even those who remain in the BGS will have to fulfill an important duty, which although it might be in other fields, cannot be considered less significant to the duties of the military … the living spirit in the BGS and their future work in the service of the Fatherland will continue up to the day in which a reunified Germany will thank you.”

Nevertheless, serious questions about the future of the organization remained. What purpose did a militarized police force serve now that the Federal Republic had an army? How would the Interior Ministry reach a new generation of young men and convince them to join an organization like the BGS? To be sure, recruitment had never been a significant challenge for the Interior Ministry, since there had always been more applicants than available positions. Yet the birth of West Germany's economic miracle and the declining postwar unemployment figures meant that the BGS now had to compete for candidates with the army in addition to the other career opportunities available for young men in both the public and private sectors. Since it faced many challenges and steep costs to rebuild the organization, why did the Federal Republic keep the BGS rather than transfer its duties to state security agencies?

LIFE MAGAZINERANA SPECIAL ISSUE in 1954 titled “Germany: A Giant Awakened,” which included a cover photo of the iconic Neuschwanstein castle in Bavaria. Inside, an article and a series of pictures by legendary twentieth-century photojournalist David Douglas Duncan highlighted a BGS company rounding up “bandits” during a training exercise. In one of the photos, border police officers wearing camouflage with machine guns at the ready have a group of civilians lined up against a wall. The pictures had all the appearances of and indeed evoked the anti-partisan operations of Nazi Germany's military security forces. Images and actions have meaning. Yet if the date and captions were removed, one could easily confuse these images of the BGS with similar photos of Nazi counterinsurgency operations on the Eastern Front.

Did it really matter that border police officers were trained to carry out military-style assaults? After all, what harm could there be in preparing its men for the possibility that they might face invading East German or Soviet armed forces at the Inner-German border? The point is not to say that West Germany became an illiberal regime because it trained its border police officers like soldiers, but rather to highlight the ways in which proceeding in this manner stood in contrast to its democratic ideals and postwar commitment to demilitarization. The government also under-mined its credibility by claiming one thing in public while doing precisely the opposite in practice, giving the impression to many observers that it had formed an army disguised as a police force. If the BGS really was a law enforcement agency and nothing else, as the Interior Ministry often proclaimed, then it should have left fighting wars to the Bundeswehr or NATO. The sociologist George E. Berkley has argued that “nothing is more vital to the creation of a democratic policeman than education.” Although the BGS never fought the hypothetical wars they spent years training for, why risk the negative consequences of police militarization that proved so disastrous to Germany's first experiment with democracy? Training is thus a useful category of analysis because it lays bare the organizational tensions between continuity and change—between those who recognized a need to move away from past models and proponents of maintaining the status quo

THE INTRODUCTION IN THE 1955 edition of Text and Reading Book for Political and Civics Education in the Federal Border Police, states: “The foundations of human morality and thus also of the state-political education are founded in the West on the Christian religion and its culti-vation by the Christian Churches.” On the face of it, the strong empha-sis of religion in a textbook intended to teach police officers about politics and civics seems unusual. The police in democratic states are supposed to be impartial and apolitical when enforcing the law. With no official state church, West Germany's Basic Law and Federal Constitutional Court pro-moted religious neutrality. Yet the Federal Republic's stance on religion did not adhere to the same strict separation of church and state found in American constitutional jurisprudence. According to the legal scholar Donald Kommers, “Because it provides for peoples spiritual needs, the church is crucially important to the life of the state and society.”

Whereas combat veterans trained border police officers like soldiers, teaching them to use infantry weapons and preparing them to fight wars, Protestant and Catholic chaplains tried to instill moral behaviors they thought would arm the men for policing a democracy. They did this through the medium of professional ethics courses, first during basic training and then in a series of ongoing seminars where attendance was mandatory. To be sure, this approach revived a Weimar-era practice, where the churches administered pastoral care and ethics training to Germany's state police forces. Although the National Socialists banned this practice during the 1930s, Germany's Christian churches and their clergy came with their own moral baggage from the Third Reich. Historians have shown that both the Protestant and Catholic churches supported National Socialism, even though the state persecuted some of its members for speaking out against its racist policies. During the postwar period, many of the Wehrmacht's chaplains returned to their pastoral work, and several of them later joined the BGS. Omer Bartov and Phyllis Mack have argued that the postwar clergy behaved as if it was “their self-proclaimed task to restore the moral order in German society.” This is precisely what BGS chaplains attempted to accomplish through professional ethics, and it allowed them to obfuscate the role of their institutions in the perpetration of Nazi crimes.