The controversial aspects of resolving of normoconflicts in cases of formal priority of codes

Abstract

The idea of formal priority of codes was declared and argued in the soviet theory of law. It is based on the specific point of objective essential division of positive law into separated sets of legal rules (branches of law) under supervisions of the concrete code. The formal priority of code means the impossibility of resolving the conflicts between such code and each other statute via lex specialis and lex posterior maxims into the specific branch of law under the supervision of the code. Thus, it is the original type of hierarchy of norms depending on the sphere of regulation. It is named the subject (horizontal) hierarchy of legal norms, and it is used in the Russian positive law since 1994. Leal experience of twenty years its practical application shows the dissociation in courts legal opinions: sometimes tribunals appreciate the idea of horizontal hierarchy, in other cases, they do not support its application. The lack of legality of formal priority of codes is one of the strongest arguments such point: Russian constitution has no rule or principle to support or to prohibit the formal priority of codes. Furthermore, the idea of formal priority of codes may be called into the question. The part of its foundations is precarious. Replicating a number of levels in hierarchy into statutes logically can lead to a bad infinity of super priority, mega priority etc. The system of law is not a set of norms with constant and static content. It causes the impossibility of the irreversible decision the question of its structure. Accordingly, there may be and will be conflicts of codes each over establish own priority. Consequently, the idea of formal priority of codes needs to be reconsidered.