Interlegal Balancing: Rejoinder to Wei Feng's Comments
Center for Inter-Legality Research Working Paper Series No. 04/2020, Sant'Anna School of Advanced Studies, Pisa, Italy
16 Pages Posted: 20 Feb 2021
Date Written: September 2020
In this rejoinder, I proceed through the three main sections in Wei Feng’s comments. In the first section, hierarchy and legal order, I address the following four points: the aims in the first main section of my working paper; the conceptual necessity of hierarchy for a legal order; the compatibility of Kelsen’s take on primacy with “rules with significant contents or values”; and the cumulative construction of hierarchy between legal orders. In a second section, I address the detached sense in which I invoke the ideas of classifying and qualifying criteria of (inter-)legality. In the third section, on modes of balancing concerning formal principles, I address the following four points: the limited scope of my argument regarding models for balancing formal principles; the nature of competence rules and their relation to formal principles; the choice among models for balancing formal principles; and whether my qualifying criteria of interlegality should be read inlegal positivist or non-positivist terms in order to be a sound proposal.
Keywords: Interlegal balancing, hierarchic structure of law, formal principles, competence rules; global legal pluralism; inter-legality; balancing competences
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