An example would be the rule against cats and dogs in a butcher’s shop, which should also
apply to the monkey which Mrs. Jackson likes to take for a walk.
Both problems can be dealt with by means of a rule that deals with the specific
situation. This specific rule will be in conflict with the more general rule, to which it
is meant to be an exception. This conflict is dealt with by means of theLex Specialis
principle because this principle brings about that the more specific rule prevails
over the more general rule.
The position of guide dogs might be dealt with by the rule that it is allowed for blind
persons to bring their guide dog to all public places. This rule would be more specific than
the prohibition for butcher’s shops and would therefore prevail over it according to theLex
Specialisprinciple. Notice, by the way, that it is not always easy to see which of two
conflicting rules is the more specific one.Lex Posterior Most of the time, when a new rule is created that is in conflict with a
preexisting rule, the old rule is simultaneously and explicitly derogated from.
However, in cases where this has not happened, theLex Posteriorprinciple may
be useful. It states that the newer rule prevails over the older one.
2.4 Treaties
From a Westphalian perspective, there is a big difference between legislation and
treaties. Legislation is a way to create law for the internal use of a state. This law is
brought about by national legislative organs that most often have a strong demo-
cratic input. Treaties, on the contrary, are a kind of contract between states by
means of which their mutual relations are dealt with. Because treaties would not
contain general rules that bind citizens, the democratic input into their creation
would not have to be as strong as is deemed necessary in the case of legislation that
does bind citizens.
This picture of the difference between legislation and treaties is mostly outdated.
Treaties do not only deal with relations between states anymore. They have also
become a way to create legal rules that deal with legal relations that transcend
national borders. The most prominent example of this new function of treaties is
human rights treaties, which assign rights to individual citizens. Another example is
the treaties that have established the EU. These treaties created institutions such as
the European Commission and the Court of Justice of the European Union, which
have a direct influence on the lives of European citizens.
In light of this new perspective on treaties, legislation and treaties are both ways
of rule creation, even if by means of different legislative organs. Whereas legisla-
tion is a form of rule creation by national and subnational legislative bodies, treaties
are a form of rule creation by cooperating states.
According to theVienna Convention on the Law of Treaties, a treaty is an agreement
between states. However, these days it is assumed that international organizations such as
the United Nations and the European Union can also be parties to treaties.2 Sources of Law 31