Derogation

Abstract

Derogation, besides commanding, permitting, and authorising, is a specific function of the norm. It exists when the validity of another norm is repealed. It plays an important part in the sphere of a positive legal order but can also arise within the sphere of a positive moral order where, however, it will hardly be taken into consideration because of the much greater stability of this normative order. Within a positive moral order, a norm ordinarily does not lose its validity by derogation, but either by the expiration of time for which it is valid according to its own or another norm’s stipulation, or by the fact that it no longer is obeyed and applied and thus has lost its efficacy and thereby its validity, efficacy being a condition for validity. These ways of losing the validity must be distinguished from losing it by derogation, since derogation is the repeal of the validity of a valid norm by another norm. Unlike other norms, derogation does not refer to a certain behaviour, but to the validity of another norm. It does not establish an ought but a non-ought. The derogating norm, that is, the norm that repeals the validity of another norm according to which a certain behaviour ought to take place, should not be confused with a norm according to which the omission of this behaviour ought to take place, and the norm that repeals the validity of another norm according to which the omission of a certain behaviour ought to take place, should not be confused with a norm according to which this behaviour ought to take place.

Reprinted from Essays in Jurisprudence in Honour of Roscoe Pound, copyright 1962, by the Bobb’s Merrill Co., Inc. Reprinted by permission. All rights reserved. (This essay and the one following are reprinted without amendment from their original sources in English. — Transl.).