Is the Hierarchy of Legal Effect Determined by Conditional Relationship? Discussion on the Difference between the Hierarchy of Legal Effect and Norm Hierarchy

JIANG Hui

Journal of Renmin University of China ›› 2024, Vol. 38 ›› Issue (6) : 102-113.

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主管:教育部
主办:中国人民大学
ISSN 1000-5420  CN 11-1476/C
PDF(9877 KB)
Journal of Renmin University of China ›› 2024, Vol. 38 ›› Issue (6) : 102-113.

Is the Hierarchy of Legal Effect Determined by Conditional Relationship? Discussion on the Difference between the Hierarchy of Legal Effect and Norm Hierarchy

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Abstract

It is claimed that the hierarchy of legal effect is determined by conditional relationship, and the fact that the Hong Kong National Security Law is formulated in accordance with the Hong Kong Basic Law would determine that the legal effect of the former is inferior to that of the latterHowever, the hierarchy of legal effect is different from its validityA certain conditional relationship can only determine the validity and cannot determine the hierarchy of legal effectThe terminology“norm hierarchy”includes two different thingsThe first is the norm rank determined by a certain conditional relationship, which is the hierarchical relationship between two normsThe second is the hierarchy of legal effect as a kind of legal force derogation relationship, which is the hierarchical relationship between two types of norms, essentially a kind of conflict ruleThe setting of the hierarchy of legal effect is chosen by legislators after consideration of various factors according to the countrys political system and historical traditions, and is not restricted by conditional relationsAlthough a conditional relationship does not determine the hierarchy of legal effect, it can affect the application of the rules of the hierarchy of legal effectBased on the conditional relationship, the lowerlevel norms can inherit the priority application status of the higherlevel norms on which they are based in the higherlevel law, so that lowerlevel norms have priority over other higherlevel norms.

Key words

Conditional relationship / Hierarchy of legal effect / Norm rank / Conflict rule / Validity

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JIANG Hui. Is the Hierarchy of Legal Effect Determined by Conditional Relationship? Discussion on the Difference between the Hierarchy of Legal Effect and Norm Hierarchy[J]. Journal of Renmin University of China, 2024, 38(6): 102-113
PDF(9877 KB)

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