1. GENERAL

The subject matter of jurisprudence is „positive law“ – that is, those norms the non-observance of which carries the threat of state-imposed coercion (= legal norms). Taken together, all these legal norms constitute the (in this case: Austrian) legal system, the identification and description of which is the subject of jurisprudence.

2. LEGAL SYSTEM AND THE THEOREMS ON STAGED Construction

2.1. Legal system

If one defines a legal system as the totality of all legal norms, this legal system is, of course, not yet „organised“; rather, it can be visualised merely as a vast jumble of thousands upon thousands of enforceable obligations.

Now, it is often said that lawyers are not particularly skilled in themselves – apart from reading, writing, thinking and speaking a little. What most lawyers do, however, have in common is the urge to bring order to things. A disorderly jumble of legally enforced requirementsregulations A lawyer must therefore, by their very nature, be averse to using such terms.

Consequently, there have been repeated attempts to bring „order to the chaos“ and to systematise legal norms. Two of the best-known attempts at systematisation are the two hierarchical models: „hierarchy based on legal conditionality“ and „hierarchy based on derogatory effect“.

2.2. A phased approach based on legal conditionality

In the „hierarchical structure based on legal conditionality“, only the content of legal norms is considered, and an attempt is made to relate this content to one another. Such an analysis reveals that some legal norms establish a condition for the creation of other legal norms. For example, Section 3(1) of the Federal Law Gazette Act (BGBl I 100/2003, as amended by BGBl I 88/2024) stipulates that the National Council’s legislative resolutions must be „Federal Law Gazette I (BGBl. I)“ must be published. The Federal Law Gazette Act thus contains a condition for the enactment of federal laws; the Federal Law Gazette Act is therefore the conditioning provision, whilst the laws published in BGBl I are the conditioned provisions. Based on this purely substantive analysis, in a „hierarchy based on legal conditionality“ the Federal Law Gazette Act would therefore rank above the other federal laws.

2.3. Stepwise construction based on the derogatory force

Every developed legal system comprises thousands upon thousands of legal norms which are interdependent in the most varied ways – or may not be at all. A graphical representation of a „hierarchical structure based on legal interdependence“ is therefore only possible as an example, not as an exhaustive list – and is thus often inappropriate.

However, the situation is different if one considers not the content but solely the forms of legal norms. The form of a norm is the difficulty involved in its creation: the more difficult a norm is to create, the higher it ranks in such a form-oriented hierarchy.

Since it follows from the laws of logical reasoning that a norm that is easier to formulate must not contradict a norm that is more difficult to formulate (otherwise the District Administrator of Mattersburg could lawfully issue a decision ordering Austria’s withdrawal from the European Union), it follows from this hierarchy that norms that are easier to enact must not „derogate“ from (i.e. repeal) those that are more difficult to enact. Consequently, in the case of such a hierarchy based solely on form, one speaks of a „hierarchy based on derogatory force“.

Since every legal system has countless contents but only a few forms, this hierarchical structure theorem is much easier to illustrate graphically. However, both hierarchical models have one thing in common: they explain what unlawfulness means. Unlawfulness means that a provision contradicts a provision that ranks above it in the hierarchical structure.

2.4. Adolf Julius Merkl

What is remarkable about the two hierarchical structure theorems just presented is that they were not invented, but rather recognised. They „work“ in any legal system consisting of more than one content or more than one form. Credit for recognising this is due to the Austrian Adolf Julius Merkl (1890–1970), one of the leading figures of the Viennese school of legal theory.

3. TO PUT IT INTO A NUTSHELL

Hierarchical models help to systematise legal norms. In the „hierarchy based on legal conditionality“, only the content of legal norms is considered; if a legal norm sets a condition for the creation of another legal norm, it takes precedence over it in this hierarchical model. In the „hierarchical structure based on derogatory force“, only the form – that is to say, the difficulty of its enactment – is taken into account; the legal norm that is more difficult to enact takes precedence over the one that is easier to enact.

If a legal provision at a lower level in the hierarchical model conflicts with a provision at a higher level, it is „unlawful“. We can help you identify such unlawful provisions and have them removed („repealed“) from the legal system. Score points with us!