Stages of the legal order
The concept of the level structure of the legal order , coined by the Austrian-American lawyer Hans Kelsen , describes the system of norms that are each generated by norms of a higher level. In turn, Kelsen's concept is based on the work of Adolf Julius Merkl .
According to Kelsen, the structure of the legal system could look like this:
- The highest positive legal norm of a legal system, the (historically first or revolutionarily created) state constitution, regulates production
- of laws , these regulate production
- of ordinances, court judgments and administrative acts.
The validity of the binding nature of a legal system cannot be found in a "positive legal" norm, but can only be assumed as a basic norm of this legal system.
The concept of a hierarchy of norms is based on the level structure of the legal system .
The order of competencies as the backbone of the consistent order of law
The backbone of the consistent structuring of a state legal system lies in the rationally graded order of legal regulatory powers (competencies):
- Competencies open up legal room for maneuver: to issue regulations, to establish specific obligations and to transfer competencies. This is how the constitution establishes the powers of the legislature; Laws establish the authority of the legislator. Individual acts that establish or change obligations also require a legally valid authorization in order to be legally effective. This applies not only to judicial and administrative acts, but also to acts of private autonomy ; here is an authorization z. B. in the right to establish specific legal obligations for oneself and the contractual partner by concluding a contract (Section 311 of the Civil Code). The ranking of the competencies corresponds to a ranking of the regulations that are issued on this basis. A legal norm that contradicts a higher-ranking norm is invalid; Equal norms that contradict each other are also. This also ensures that legal obligations do not contradict one another.