The Theory of the Law Creators’ Circle: Re-Conceptualizing the Monism – Dualism – Pluralism Debate

German Law Journal 17 (2016), 2, 179-214

36 Pages Posted: 23 Apr 2016

See all articles by Lando Kirchmair

Lando Kirchmair

Universiät der Bundeswehr Munich - Institute for Public Law and Public International Law; University of Salzburg - Institute for Public Law, European Union Law and Public International Law

Date Written: January 20, 2016

Abstract

The aim of this Article is to re-conceptualize the debate about the (theoretical) relationship between international and national law, which has been debated for centuries. Generally, the floor is divided between dualism as developed by Heinrich Triepel and monism developed mainly by Hans Kelsen. In the light of new developments since their inception, I argue that these theories can no longer comprehensively explain the relationship between international or European Union (EU) and national law. Yet, the Article is based on the conviction that a common denominator of international and national law is elementary (i.e. here “the law creators’ circle,” in German, “Die Theorie des Rechtserzeugerkreises,” in short “TREK”) in order to solve possible norm conflicts between different but overlapping legal orders. Therefore, pluralism is also limited in my eyes because it does not offer a satisfying prescriptive account. This common legal framework, however, must not be understood as the “constitutionalization” of international (or EU law) either, as this easily implies too many substantial values, which are not (yet) a common reality.

Suggested Citation

Kirchmair, Lando, The Theory of the Law Creators’ Circle: Re-Conceptualizing the Monism – Dualism – Pluralism Debate (January 20, 2016). German Law Journal 17 (2016), 2, 179-214, Available at SSRN: https://ssrn.com/abstract=2767528

Lando Kirchmair (Contact Author)

Universiät der Bundeswehr Munich - Institute for Public Law and Public International Law ( email )

Werner-Heisenberg-Weg 39
Neubiberg
Munich, 85577
Germany

University of Salzburg - Institute for Public Law, European Union Law and Public International Law ( email )

Kapitelgasse 5-7
Salzburg, 5020
Austria

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