In 1951, Hermann Mosler liberated German legal thought on transnational phenomena from the shackles of statist constitutional thinking. The forum of this liberation was the Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, and the occasion was the Treaty Establishing the European Coal and Steel Community (ECSC). Mosler paved the way to conceptualize Community law beyond the constitutional dualism of domestic law and international law—as a new and novel legal order, conceived in federal and constitutional categories. He demonstrated that the political will to establish a treaty-based federation of sovereign states is not a legal paradox but rather a path to a better future. However, this requires breaking constitutional dogmas. The article first addresses these dogmas, illustrated by essays in which Carl Bilfinger sought to orient legal thought after World War II. In the light cast by these essays, Mosler’s liberation gains clear contours. Finally, the article shows that Mosler’s liberation still missed out the elephant in the room.
