This article begins by reviewing the axiomatic principles that govern courts when dealing with cases in which two legal norms are interpreted as standing in conflict. The article then makes three distinct contributions.

First, the article explicates the central justification behind the use and perpetuation of the extant principles. In briefest terms, the extant principles are best justified as an attempt to resolve cases in which legal rules stand in conflict in a way that enhances or preserves the democratic legitimacy of law. They do this by favoring norms created by entities of relatively strong democratic legitimacy over norms created by entities of relatively weak democratic legitimacy. For example, under the extant principles, a statute will trump a conflicting regulation. Statutes are the product of legislatures, while regulations are promulgated by administrative agencies; the former boasts stronger democratic legitimacy than the latter. In this way, the extant principles work to enhance the democratic legitimacy of law.

Second, the article explains the central problems that the extant principles engender. Despite the fact that the extant principles are justified by their tendency to enhance the democratic legitimacy of law, in many instances their rigid formalism will produce the opposite effect. For example, where a special interest statute of low democratic legitimacy stands in conflict with a popular regulation of strong democratic legitimacy, under the extant principles the former will trump the latter. This sort of anti-democratic outcome produces another problem - an incentive for courts to manipulate their interpretive discretion in order to avoid anti-democratic outcomes. For example, rather than allow a special interest statute to trump a popular regulation, courts will use their interpretive discretion to adopt strained norm interpretations that avoid any conflict. One problem with this practice is that judicial opinions rationalize outcomes as following from neutral rules of legal interpretation, when in fact outcomes are driven by factors not addressed or mentioned in opinions.

Third, and most importantly, the article compares the extant principles with several suggested alternative sets of principles and explains the advantages that these alternatives offer over the extant principles. The article offers numerous alternative sets of principles that could minimize both the anti-democratic outcomes, and the incentive to manipulate the meaning of legal norms, produced by the extant principles. In short, the article explains the problems engendered by the understudied principles governing conflicts between legal norms, and then offers numerous alternative sets of principles aimed at alleviating these problems. The ultimate conclusion of the article is that no set of principles for dealing with cases of conflicting norms is ideal. All systems imply particular mixes of good and bad features. The bad features of the extant set of principles, however, do not seem to outweigh whatever good features they exhibit.


Jurisprudence | Legislation

Date of this Version

September 2004