Normative Conflict in Legal Systems: A Functional Analysis

Most legal philosophers who express an opinion on the issue of normative conflict adopt some version of what I call the 'no-conflicts' thesis. They argue that there are no genuine conflicts between the norms of a legal system, that the norms of a legal system are necessarily consistent with one another, or that normative consistency is a rational ideal for legal systems. I argue that both versions of the no-conflicts thesis are mistaken. ;Traditional analyses of normative conflict, based on a misapplication of principles of truth-functional logic to the normative sphere, are overly restrictive: normative conflict is understood as a purely deontic phenomenon. Only deontic norms , so the tradition has it, can conflict. I argue that normative conflict is a wider phenomenon. Non-deontic norms can conflict just as can those falling within the deontic sphere. I argue that a normative conflict arises whenever the interrelations in a group of norms are such that it is impossible for all of the norms in that group to function properly. Modern Conflict of Laws principles, which examine the functions of norms, provide valuable insights into the problem of normative conflict. ;Applying modern Conflict of Laws principles to the problem of normative conflict yields two significant results. First, one can develop a new taxonomy of normative conflict in which "conflict" is the genus and "contradiction", "collision", and "competition" are the species. The second significant result is that the principles which govern the resolution of normative competitions can be applied to normative collisions and even to normative contradictions. A functional analysis of normative conflict provides a better understanding both of what the phenomenon is and how conflicts should be dealt with than is provided by traditional analyses