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
Date Written: November 15, 2005
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
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