These “sub-states” are called “states” (USA),L€ander(Germany), orgewesten(Belgium).
Federations are discussed more extensively in Sect.8.2.1.
Substates will have legislative bodies too, which are competent to make rules for
their own territories. Provinces, municipalities, and other subnational entities also
have legislative powers.
Soft Law There are also rules that are not officially binding but are nevertheless
influential (see Sect.1.7.3). Examples of this soft law are the Draft Common Frame
of Reference (2010), a set of model rules for European private law drafted by legal
scholars, and the Universal Declaration of Human Rights (1948), brought about by
the General Assembly of the United Nations. It is not easy to say something in
general about this type of “legislation,” but its importance is growing, and soft law
should therefore be included in an overview of kinds of legislation.
2.3.2 Principles to Deal with Rule Conflicts
There is not even a guarantee that all legislation brought about by one body is
consistent, but if there are several bodies that produce legislation that can apply to
the same case, such as national laws and laws of provinces, this is almost a
guarantee that there will be some conflicts of rules. To deal with such conflicts,
several principles have been developed over the course of time. Here we will focus
on three of them.
Lex Superior Sometimes rules stand in an order based on a hierarchy between
legislative bodies. This is, for instance, usually the case if in a particular state
legislators operate on different levels. Then the rules of the “central” legislator are
considered to be superior to the rules of the local legislators. TheLex Superior
principle then holds that in case of conflict, the superior rule precedes over the
inferior rule.
Thus,Lex Superiorholds that national laws would prevail over laws of the province and
that laws of the province prevail over municipal laws. Another example would be the
prevalence of EU law over the national laws of the EU Member States.Lex Specialis It is very difficult for a legislator to foresee all possible situations to
which a rule may apply. As a consequence, a rule may be either overinclusive or
underinclusive. A rule isoverinclusiveif it literally applies to cases in which it was
not meant to apply.
An example would be a prohibition for any cats and dogs to be present in a butcher’s shop,
which is not meant to apply to guide dogs for the blind.
A rule isunderinclusiveif it does not apply to cases to which it was meant to
apply.
30 J. Hage