Τετάρτη 6 Σεπτεμβρίου 2017

Conflict of rules

Από το άρθρο του J. Hage, "Logical Tools for Legal Pluralism", inLaw and the New Logics (Edited by H. Patrick Glenn and Lionel D. Smith), Cambridge University Press, 2017, p. 89, 106-107.

"The development of the internet, the rise of transnational law, the coexistence of different legal traditions and subtraditions, and globalization, all increase opportunities for conflicts between rules of different legal systems. One of the tasks of legal science is to deal with these possible conflicts and, as Glenn pointed out, the insights of modern logic are one place to look for assistance. Logic neither can nor should dictate a particular way of dealing with rule conflicts, but it can be of help by providing a conceptual framework that clearly defines when a rule conflict occurs and which tools are available to avoid these conflicts or to deal with them."

"A conflict of rule occurs when it is possible that two or more rules attach incompatible legal consequences to a case. Within a single legal system, the possibility of rule conflicts is limited by adding scope conditions to the ordinary rule conditions. Mechanisms such as PIL extend this role of scope conditions to the relation between rules from different systems. Another limitation of the possibility for rule conflicts consists in the limitation of the powers of rule creating agents. Often it is impossible to create rules that conflict with already existing rules."

"If a conflict occurs between rules of different legal systems, there is logically speaking no need to deal with the conflict. It is logically well possible that an agent ought to do X from the point of view of one legal system, and ought to refrain from doing X from the point of view of another legal system. However, an agent who is subject to incompatible prescriptions from different legal systems is burdened with a dilemma. Legal system often come to the assistance of such individuals by referring to the rules of other systems, or by incorporating 'foreign' law."

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