Neither Fish, Nor Fowl

Abstract

International lawyers ascribe to the lex specialis principle three distinctly different meanings. Thus, lex specialis is referred to, first, as a norm designed to resolve conflicts between entire categories of norms; secondly, as a norm designed to resolve conflicts on a case-by-case basis; and, thirdly, as a rule of interpretation designed to avoid the occurrence of normative conflicts, rather than to resolve them. Scholars have attempted to explain this divergent use of legal language. In so doing, they have consistently had their focus on the different mind-sets or inclinations of lawyers active in different branches of international law. Symptomatic is Marko Milanović, who pictured the divergent use of lex specialis as a reflection of a debate waged between “human rights enthusiasts” and “human rights sceptics”. This article approaches the issue at a different level of abstraction. As it argues, the divergent use of lex specialis is the result of users’ different conceptions of an international legal system. Thus, lawyers conceive differently of the lex specialis principle, depending on whether they take the position of a legal positivist, a legal idealist or a legal realist. In no case are lawyers equipped to conceive of this principle in all of its three senses.