Arnaud Beghuin

Hahaha

Ernst Cassirer

In 2.1 "it" refers to Bulygin's framework. Sorry for this bad formulation.

Well, I see we're drifting towards a host of further related questions. Here are my final remarks.

(I apologize for extending the discussion. It is a both very useful and a pleasure to benefit from your insights, but I would understand you have other priorities than responding to my ramblings)

But in this framework, I don’t see why AN would necessarily be primitive: it is possible for it to be promulgated alongside N2, in which case, S2’ contains no primitive norms but is still a system of O.

This cannot be the case in a system as simple as S2. We’d need a slightly more complex system, S2’ containing at least, besides N2b, an applicability norm AN referring to N1 according to which N1 is applicable before and up to the moment (this moment being included) at which it is repealed.

Even though N1 does not exist at t2, it is possible for it to be *applicable* to normative acts up to and at t2, and for N2 to be applicable only to normative acts after t2 (itself excluded). This confers membership to N2b even if N1 is repealed.

Be it as it may, how can N2b belong to a system of O if, at t2, N1, the very norm which confers membership to N2b, does not exist anymore? Well, it seems Bulygin’s answer (T&V, 183) would be more or less:

And if we suppose N2a comes first, then, at t2, there is no empowered authority (and hence no legal order), and there is one after all (since there is N2b).

For if we somehow suppose N2b comes first logically, then, at t2, we both have a conflict of norms (between N1 and N2b) and no conflict of norms after all (N1 is repealed by N2a).

If this is the case, it is awkward to ask which of N2a or N2b comes first, at least in a temporal sense. But in this context, I doubt there is another (perhaps logical) sense in which one can ask which norm comes first.

Let’s add some temporality to the matter, in assuming that S1 is the first system of O at t1, and that Rex’s first normative act is at t2, so that S2 exists at t2. According to Bulygin, the promulgation of N2 (N2b) and repeal of N1 (N2a) can be simultaneous (T&V, 173&181).

Looking closely at the way he solves Ross’ puzzle about the amendment of constitutional amendment provisions (T&V in ELP, 171-187), it seems his answer would be different as well as compatible with the existence of systems not containing primitive norms.

This absolutely makes sense, thank you for your enlightening remarks! But at the risk of nitpicking, I’m not sure this would be Bulygin’s answer.

It is the case if it is or has been legally repealed by a competent authority (which derive its competence from the very existence of this law in the first place). This doesn't mean there has been a legal revolution.

Now, being less abstract, I would say it is possible (maybe it is actually even the case) for the law of 3 June 1958 not to be part of the Vth Republic legal order today or later on.

This is the case so long as those norms ultimately derive their membership from the same (potentially already repealed) primitive norms. Indeed, in these cases *the same* identification criteria are used.

So my take is: it is only necessary for the first legal system of a legal order to contain primitive norms. Later systems can contain only derived norms, and nonetheless be part of the same legal order.

(i) every norm belonging to it (actually one norm: N2) is either N1 or derives its membership from N1, so S2 shares the same primitive norm as S1, and is therefore a system of O; (ii) S2 does not contain a primitive norm (indeed, N1 has been repealed and N2 is a derived norm).

This gives rise to a system S2, which has the following properties:

Now, suppose Rex's first normative act is to repeal N1 by promulgating the norm N2: Regine and only her has the power to promulgate and repeal norms.

Suppose we define a legal order O, whose identity is determined by one primitive norm N1 belonging (at least) to its first legal system S1. Suppose N1 is the following norm: Rex and only him has the power to promulgate and repeal norms.

I think Bulygin is wrong in saying that every legal *system* contains a set of primitive norms. Why?

I don't think I have been frivolous in my reading of Bulygin (I carefully read the mentioned articles, as well as the relevant parts of NS). But I surely have been in expressing my thoughts in an imprecise way. So let me restate my point clearly.

Yes, I'm not claiming he says every legal system contains a new primitive norm. I'm just claiming he says every legal system contains a set of primitive norms, which seems inaccurate to me. I'm referring to this page specifically.

(1) Indeed, he takes it to be a definition.
(2) The mistake precisely seems to be rooted in a of conflation of the concepts of legal order and legal system, since he shouldn't say that every legal *system* contains primitive norms. There has to be such norms only in the first system of an order.

I still believe a lot of distinctions they make (especially Bulygin) represent clear improvements with respect to Kelsen's theory. But Kelsen is the GOAT.