Unearthing Structural Uncertainty Through Neo-Kelsenian Consistency: Conflicts of Norms in International Law

Papers of the European Society of International Law, online, December 2005

25 Pages Posted: 14 Jan 2010

See all articles by Jörg Kammerhofer

Jörg Kammerhofer

University of Freiburg - Faculty of Law

Date Written: November 15, 2005

Abstract

My paper will give an example of the critical force of Hans Kelsen’s theories: International law, as any normative order, becomes uncertain when too much law ‘exists’ and norms conflict. I believe that conflicts of norms are severe problem for any normative scientist. Conflict puts on us pressure to resolve by somehow ‘privileging’ one norm over the other. Conflicts of norms are a source of uncertainty in international law. The problem of international legal scholarship is its unquestioning adoption of ‘traditional’ resolving devices such as the lex posterior or lex specialis maxims. We need to be sceptical about the orthodox predisposition to resolve conflict all too easily and we need to be sceptical vis-à-vis the devices orthodoxy employs. I will be ‘vetting’ the three most commonly used and widely accepted ‘traditional resolving devices’ – the lex posterior, lex specialis and lex superior maxims.

Keywords: conflict of norms, lex specialis maxim, lex posterior maxim, lex superior maxim, Pure Theory of Law

Suggested Citation

Kammerhofer, Jörg, Unearthing Structural Uncertainty Through Neo-Kelsenian Consistency: Conflicts of Norms in International Law (November 15, 2005). Papers of the European Society of International Law, online, December 2005. Available at SSRN: https://ssrn.com/abstract=1535942

Jörg Kammerhofer (Contact Author)

University of Freiburg - Faculty of Law ( email )

D-79098 Freiburg
Germany

Register to save articles to
your library

Register

Paper statistics

Downloads
106
Abstract Views
477
rank
253,333
PlumX Metrics