Legal assistance on supranational regulations and sources
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Who sets the rules today? If law was once the exclusive domain of the State, today Big Tech, the European Union and supranational organizations are redefining its boundaries. Digital platforms impose binding terms of service, while regulations such as the GDPR and the Digital Services Act have global effects. The traditional pyramid of legal sources has evolved into a complex and articulated network. Do States still have control? Can we still speak of legal certainty?
To understand who holds the power to set the rules today, it is essential to clarify what we mean by law and what we mean by rules. In other words, the central theme is the sources of law.
One of the most influential legal theorists in modern jurisprudence is Hans Kelsen (1881–1973), the author of the so-called “pure theory of law“. Kelsen aimed to free law from any moral or political influence, arguing that many previous theories were “contaminated” by ideology. His objective was to focus exclusively on the legal structure, analyzing it in a scientific and neutral manner.
The most renowned outcome of this approach is the Kelsenian pyramid, a hierarchical representation of legal norms in which each norm derives its validity from a higher norm, ultimately leading back to a fundamental presupposed principle, the Grundnorm.
Kelsen conceived the legal system as a Stufenbau (a graded structure), where norms are arranged in a hierarchical order. Each norm is valid because there exists a superior norm that confers validity upon it:
According to Kelsen, the hierarchical chain of norms cannot extend indefinitely: at the apex, there must be a fundamental norm (Grundnorm), which serves as the ultimate foundation of validity for the entire legal system. This norm is not written in any text; rather, it is a necessary presupposition to ensure the coherence and formal validity of the legal system. For example, the Grundnorm could be the principle that “the Constitution must be obeyed“.
But is this concept still valid in today’s legal framework? Let us examine how the hierarchy of sources functions in our system.
Kelsen’s idea of a normative hierarchy was incorporated into the Italian legal system, where legal norms are structured in a pyramidal form. At the apex stands the Constitution, followed by subordinate sources in descending order of importance: ordinary laws, decrees, regulations, and, finally, customs and practices.
The 1948 Constitution is the fundamental norm of the Italian State, often identified in legal manuals as the Kelsenian Grundnorm, as it legitimizes all other norms. Immediately below it are constitutional and amending laws, followed by ordinary laws and acts with the force of law (such as legislative and decree-laws). Further down the hierarchical scale are governmental regulations, while customs and practices represent the lowest-ranking source.
The fundamental principle of this hierarchy is that a lower-level norm cannot conflict with a higher-level norm: if such a conflict arises, the lower norm is invalid and can be annulled.
A clear example is ordinary laws that contradict the Constitution, which may be declared unconstitutional by the Constitutional Court. This principle is encapsulated in the Latin maxim, i.d. brocard, lex superior derogat inferiori (the superior law prevails over the inferior one).
However, it is crucial to clarify a fundamental point: Kelsen was not describing a single national legal system but rather proposing a general theory of law applicable to any legal system. His normative pyramid is not merely a list of Italian legal sources but a logical structure of validity applicable to any legal framework. For instance, international law or another country’s legal system can also be analyzed hierarchically by identifying its respective Grundnorm.
In the Italian case, the Constitution is commonly regarded as the apex of the pyramid. However, in a strictly Kelsenian sense, the fundamental norm is positioned even higher, as it coincides with the presupposed principle that grants validity to the Constitution itself. In other words, the Italian legal system is based on the shared conviction that… the Constitution is the Constitution.
For a long time, the pyramid of legal sources effectively described the structure of State law. However, today this model is increasingly being challenged. European integration, globalization, and digitalization have made the normative hierarchy more fluid, creating a much more complex and articulated system.
One of the main factors transforming the traditional hierarchy is the European Union, which has introduced supranational legal sources with direct and overriding effect. Treaties, regulations, and directives intervene in areas previously reserved for national laws, giving rise to a multilevel legal system.
The Italian Constitution, in Articles 11 and 117, accepts limitations on sovereignty in favor of the EU legal order, and the Court of Justice of the EU has affirmed the primacy of EU law over conflicting national laws. This means that the traditional Kelsenian pyramid is no longer closed but has opened upwards: above (or alongside) the Constitution, supranational sources coexist, which do not derive from it but complement it.
However, in Italy, the doctrine of counter-limits seeks to preserve fundamental principles, arguing that the Constitution remains superior when inalienable human rights are at stake. But is this sufficient to maintain a clear and stable legal order?
Beyond the EU, another factor has made the legal hierarchy more fluid: globalization and the dominance of digital platforms. Law, traditionally conceived as a pyramidal system, today resembles more of a network, where rules do not solely descend from above but also emerge from international agreements, private regulations, and technological standards.
If rules no longer originate exclusively from States, who really holds the power to establish them today?
The idea of a crisis of legal sources stems from the increasing difficulty States face in regulating global phenomena, particularly those related to digitalization and economic globalization.
Once, law was almost exclusively the expression of the sovereign State. Today, however, many fundamental rules of our daily lives do not come from Parliaments but from digital platforms, supranational institutions, and major tech corporations.
Big Tech companies such as Meta (Facebook, Instagram), X (formerly Twitter), and Google have assumed a quasi-legislative role, imposing terms of service that dictate what is allowed or prohibited on their platforms. In practice, they unilaterally decide the boundary between freedom of expression and content moderation, often without transparency or due process.
A paradigmatic example is the collection and use of personal data for AI training. The European Union has sought to curtail abuses through regulations like the GDPR (General Data Protection Regulation) and the AI Act, but tech multinationals wield such influence that they can even shape legislative processes.
The GDPR, for instance, has not only raised the level of personal data protection in Europe but has also influenced foreign regulations, such as the California Consumer Privacy Act (CCPA) in the United States.
This phenomenon, known as the “Brussels Effect”, demonstrates that, although States have lost centrality, some supranational entities can still exert a global regulatory influence.
However, this transformation of law raises profound questions: which source should prevail in case of conflict? Do States still have control over the rules governing digital society?
The Kelsenian pyramid remains a fundamental reference, as it helps us reflect on the validity of norms. Nevertheless, in the contemporary world, the answer is no longer straightforward. Law is no longer a closed hierarchical system but a polycentric ecosystem where States, multinationals, and supranational institutions compete for normative power.
We are witnessing a new legal era, where the power to create rules is no longer exclusively in the hands of States. And in this ever-evolving scenario, one question remains unanswered: can we still speak of legal certainty?
