Robert Walter, Die Normkonflikte Und Der Zweite Stufenbau Des Rechts (Robert Walter, Norm Conflicts and the Second Hierarchy of Norms)
Gedenkschrift Robert Walter, Clemens Jabloner et al, eds., Vienna: Manz 2013, pp. 237-256
13 Pages Posted: 12 Jul 2012 Last revised: 20 Jun 2013
Date Written: July 12, 2012
This article deals with Robert Walter - the doyen of the Vienna School of Jurisprudence - and his views on the definition and resolution of conflicts of norms within legal orders. After a portrayal of his arguments in his little-known 1955 PhD thesis 'Über den Widerspruch von Rechtsnormen', the paper proceeds to critique both the 'logic' - based as well as the fact-based versions of his definition of norm conflict. Both the Kelsenian 'coercive order paradigm' as well as the factual inability to perform are deconstructed as not being able to sustain the idea that norms conflict. Norms conflict only when one norm claims to be ending another norm's 'existence', ie validity.
In a second step, the paper links norm conflict to the Adolf Merkl's and Hans Kelsen's hierarchy of normative orders, more specifically the hierarchy of derogation (Stufenbau nach der derogatorischen Kraft). Despite being widely accepted even outside Austrian public law, the Stufenbau-theory is is inordinately complex and more often quoted than understood. In this paper, the problem of building the second hierarchy is analyzed in conjunction with the function of derogation in its connection to norm conflict.
Note: Downloadable document is in German.
Keywords: Adolf Merkl, Robert Walter, Hans Kelsen, norm conflict, pure theory of law, derogation, hierarchy of norms, deontics
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