5.7 Theories of norm and collision between norms
We have given an account of the complexity between substantive law and choice of law rules and, in consequence, illustrated what we have called a ‘clash’ between legal perspectives. We have tried to analyze this ‘clash’ and reconcile the respective positions as a matter of pragmatic law application and adjudication. Despite this attempt, the fact remains that there are striking differences of opinion as to how to approach this interplay between opposing sets of rules, as illustrated particularly by the Norwegian draft choice of law Report, as contrasted with the corresponding Swedish position. In other words, there are different positions as to what constitutes choice of law within what we have categorized as the choice of law perspective – in addition to the opposing position of what we have called a (substantive law) scope perspective.
Collision between legal norms is nothing new. In the realm of substantive law the phenomenon is well known. In simplified terms: If there is potential conflict, there are two alternative approaches to resolve it. The one is to avoid the conflict by aligning the (seemingly) conflicting rules to one another through techniques of construction; to adopt restrictive construction to the one (or both) norm in light of the other.
If such alignment through techniques of construction is not feasible, the other alternative is to adopt principles developed to give primacy to the one norm (or set of norms) over the other. Such principles may involve the hierarchical origin of the conflicting norms (lex superior), or the temporal origin of the conflicting norms (lex posterior), or the specificity or generalized nature of the conflicting norms (lex specialis).
What signifies these approaches – the alignment of norms to avoid conflicts, or principles applied to resolve conflicts – is that holistic approaches are required and adopted. A holistic approach is required in the said process of aligning norms to avoid conflicts, and it is required in, and forms the basis for, the said principles for resolving the outcome of colliding norms.
Our topic is marked by this very phenomenon of potentially conflicting norms and there is, in the author’s view, a conspicuous lack of reflection among choice of law lawyers to elevate the topic to a more principled level.
We have made some tentative suggestions in that respect. We have suggested that such potential conflict can be avoided by construing Rome I restrictively, to the effect that it is not intended to cover situations where choice of law questions are already resolved through legal instruments which incorporate choice of law as part of substantive law harmonizing schemes. Or the same result could perhaps be achieved through established principles for resolving conflicts between norms, for example by viewing choice of law questions incorporated into, and thus resolved through, harmonizing substantive law scope provisions, as lex specialis to the otherwise application of choice of law instruments (Rome I). It is worth recalling that European courts in practical adjudications in the area of international sale of goods and the CISG, have reached the solution of giving primacy to our advocated (substantive law) scope perspective(1) Section 4.3.3. – a result which fits well within the more theoretical justifications for it, as suggested here.
The diversity of views between various lawyers does, nevertheless, point in the direction of a need for further research and academic exploration in this field. This, in turn, involves a need to go below the surface of superficial analyses(2) Of which, in the author’s view, the Norwegian Report is an example, see Section 4.3. and undertake more fundamental inquiries into theories of legal norms. The Norwegian legal theorist Nils Kristian Sundby (1942–1978) laid the groundwork for such endeavours. His work(3) Sundby Om normer (on norms), 1973. I will here be using the second edition from 1978. was marked by an ambition to expand on the traditional understanding and analyses of norms which, in Sundby’s view, had too narrowly dealt with only two categories of norms: deontic norms (duties or directives in their various forms) and norms of competence (norms facilitating the creation of new norms), as well as the interplay between the two.(4) See Sundby (1978) e.g. pp. 3, 9, 50–63, 110–117, 393–396. The interplay mentioned here is marked by the idea that all norms of competence can indirectly be derived from (conditional) deontic norms, as was the view taken by the Danish scholar Alf Ross, Ibid p. 393–396. In Sundby’s view, such a narrow approach failed to take into account what he considered to be an overarching type of norms which he chose to call qualification norms;(5) In Norwegian: ‘kvalifikasjonsnormer’, which could also translated as ‘eligibility norms’ – see, generally, Sundby (1978) p. 3 and pp. 77 et seq. The term seems to have been introduced originally by the Swedish scholar Tore Strömberg in his article Lathund för lagläsare (simplified guidance for readers of legislative acts) published in Logik, Rätt och moral (logic, law and morals), 1969, pp. 191–205, and adopted by the Swedish scholar Karl Olivecrona in Rättsordningen (the system of law), 1966. norms giving the criteria for – thus ‘qualifying’ – what will ‘count as’ something in a given normative context.
Choice of law rules would, in Sundby’s categorization and terminology, be good examples of such qualification norms. The same applies to (statutory) scope provisions directing the application of substantive law rules – and to the interplay between the two.
Sundby’s works on this point were of a rather rudimentary nature, although having the strength of taking an holistic approach, penetrating and dissecting the function of various norms within the legal realm seen as a dynamic, holistic system.(6) As further developed in the book Rettssystemer (legal systems), 1975, co-authored by Torstein Eckhoff (1916–1993). Since his endeavours, surprisingly little has been done in legal philosophy to test out and develop these endeavours.(7) Svein Eng, Rettsfilosofi (legal philosophy), 2007, adopts Sundby’s categories of norms, including that of qualification norms, but Eng takes the topic in the direction of linguistics, which in the author’s view is of limited value in bringing renewed insight into the more pragmatic complexity of legal norms, as has been illustrated in this article. Moreover, it is in the author’s view questionable whether Eng gives a fair representation of Sundby’s original idea behind the term, see Rettsfilosofi p. 108–109 and footnote 38 on p. 109, describing Sundby’s thinking on the origin of the concept as “lacking in clarity” (‘dunkel’). As further illustration of Sundby’s perspectives, see Solvang, From the role of classification societies, to theories of norms and autonomous ships – some cross-disciplinary reflections, SIMPLY 2018=MarIus 518, 2019 pp. 241 et seq. Perhaps the time has come to restart such endeavours. The partly chaotic divergence between different legal scholars in the field of choice of law versus substantive law and scope provisions, certainly points in that direction.