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
Date Written: January 20, 2016
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.
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