This brings me to the last aspect: I used the hierarchical structure in two ways. Footnote 41: On the one hand, it shows how the entire legal system is made up of norms that are in a relationship of superiority and subordination; One standard owes its validity to the validity of another standard. On the other hand, the hierarchical structure also provides the theoretical basis for the repeal of laws; The higher-level law destroys the subordinate law. It must be clear that the hierarchical structure, understood in terms of legal conditionality, does not have to be completely identical to the hierarchical structure understood by the concept of pejorative power. Footnote 42 A constitutional provision may form the basis for the annulment of a simple law even if it was created in accordance with the law and therefore cannot have been a prerequisite for the creation of that law. An opposite example would be the rules of procedure, which are usually either at a lower level or, at most, at the same level as a simple statute, but which are also a prerequisite for the creation of simple laws and even constitutional provisions. It is therefore justified, with Merkl, to distinguish two “hierarchical constructions”: the hierarchical structure, which is understood as a legal conditionality, and the hierarchical structure, which is understood in the sense of a pejorative power. In both cases, however, the Constitution will claim the highest level. Of course, we cannot stop there, because the Constitution must derive its validity from another norm, for example from an earlier Constitution, but this only works if that previous Constitution contains rules governing how amendments are to be made to the Constitution and if these norms have actually been applied. Footnote 12 However, if the new constitution came into being in a revolutionary act, then we have reached a provisional end point, at least as far as national law is concerned.
I would just like to point out here that another student of Kelsen`s, Alfred Verdross, argued vehemently that national law has certain norms of international law as the basis for its validity. Footnote 13 It could be said that it extended the hierarchical structure of the inclusion of national law to international law. Kelsen himself saw this as at least one of many ways to solve the problemFootnote 14; I myself share Verdross` opinion. But there is no need for us to delve deeper into this discussion. In the current context, this is only a matter of national law and, there, the Constitution is indeed the highest level of positive law. One level lower are laws, another level lower than regulations or by-laws, then court decisions and individual administrative acts, etc. Footnote 15 2In this article, my task will be to address the question of the hierarchical model in law from the perspective of H. L.
A. Hart`s philosophy of law. Herbert Hart – it must not be forgotten – became, and still is, one of the most influential jurists of our time, and his views permeate many of the current doctrines of legal practice and argumentation. My presentation and discussion will therefore focus on Hart`s concept of law and its relationship to the hierarchical model. It is also a more general assessment of the fertility of such an approach, with particular reference to international law. This theory is recognized as so fundamental that it is taught to students from the first semester, although in a very simplistic way, which does not really reflect the revolutionary character that the theory had at the time it was developed. Footnote 1 In any case, this theory is common sense in the Austrian scientific community. This applies not only to the followers of Hans Kelsen`s “pure legal theory”, which is still very popular in Austria, but also to his critics. For this second type of doctrine of natural law, there could therefore be no real doubt as to the binding and entirely legal character of international law. 23 I will now continue by illustrating Hart`s response to the other three models, namely legal formalism, legal realism, and natural law. To do this, I would like to present what I believe to be the basic principles of Hart`s philosophy of law.