Stages of the legal order

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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:

  1. The highest positive legal norm of a legal system, the (historically first or revolutionarily created) state constitution, regulates production
  2. of laws , these regulate production
  3. 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.

Individual evidence

  1. ↑ Hans Kelsen , Reine Rechtslehre, 2nd ed. 1960, p. 228 ff.
  2. ↑ Hans Kelsen, Reine Rechtslehre, 2nd ed. 1960, pp. 200 ff., 232 f .; see. Zippelius, Philosophy of Law, 6th edition, § 4 III.
  3. ↑ Text following Reinhold Zippelius , Das Wesen des Rechts, 6th edition, 2012, chap. 2 f.