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TR
There are two different ways in which contrariness of one norm to the other may occur.…
Neither collision nor contrariness is a form of contradiction. Contradiction is a…
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Norms are not propositions. They cannot be true or false, only valid or invalid(202).…
At least one of the contradicting propositions is false. However, one cannot claim…
As will be argued below under the section “Binding Force of Law”, it is reasonable…
Let me first deal with the case where the content of a norm can only be predicated…
The situation with collisions between requirement-norms is slightly different. As…
This will be expanded on in the following pages. However, it is important to stress…
Now, judges and other legal officials ought to determine what an agent ought to do…
The inapplicability of at least one of the requirement-norms requires a slightly…
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The next question is which of the colliding norms is inapplicable. Logic cannot determine…
In lieu of a positive conflict rule, it is generally acknowledged that three principles…
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Lex superior requires that in case there is a normative hierarchy between the colliding norms, the superior norm ought to take precedence. Precedence here can be understood as the primacy of application (Anwendungsvorrang)…
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Lex specialis concerns collisions between norms of the same hierarchical level. If one of the two colliding norms is more specific than the other, the specific norm ought to be applied. Consider the following two norms assuming that they were enacted at the same time: “All ought to φ in the case of C” and “Youngsters ought to ψ in the case of C”. As per
It could be argued that lex specialis (not the principle, but the more specific norm) can…
All of this would be fine if it were always possible to interpret the more specific…
Consider next that the more specific norm pre-dates the more general one. In cases…
It may still be possible to consider a particular form of lex specialis as…
Now, it could be argued that Nˊ2 actually imposes a duty on legal officials to refrain…
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Lex posterior concerns collisions between norms of the same hierarchical level where one of the norms is more recent than the other. It indicates that the latter norm should have primacy of application over the former. This is also called the doctrine of implied repeal. The principle is broadly also expressed by the term “derogation”. The wording of the principles wrongly creates the impression that derogation is a function of the latter norm(214):…
The principle of lex posterior recognizes the authority of the present over the past. This seems reasonable for two reasons: 1) Norms at the same hierarchical level are generally issued by the same authority and 2) an authority almost always has the authority to revise its own norms. Therefore, it seems reasonable to assume that the latter norms of the same authority take the primacy of application over the earlier norms. It is important to remember, however, that these reasons are subject to exceptions. Especially the first one. Consider the situation of statutory
There are also cases where the authority of the present over the past is rejected.…
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I have previously stressed that in case there is a hierarchy between the colliding…
One may wonder if and why these non-positive principles are binding. Some so-called…
