The Lex Specialis Principle and its Uses in Legal Argumentation. An Analytical Inquire

Abstract

The lex specialis principle according to which special rules derogate from general ones lies in the core of the Western legal tradition. In the eyes of jurists and legal philosophers this principle is one of the most typical criterion against legal antinomies and has a plain and clear meaning. Most theories are concerned only with its interferences with the lex posterior and the lex superior principles. But this common view is unsatisfactory in many aspects. In fact, the lex specialis principle may be applied and it is often used to solve redundancy in law, rather than legal antinomies, and so it is a tool to prevent the simultaneous application of special and general compatible rules. This use is prominent in criminal law but it is widespread even in the other fields of law. Moreover, in every fields of law, the lex specialis principle is a device to coordinate and integrate special and general rules to obtain a more complete regulation of a certain matter: this use is essential for legal systems. In this paper there will be distinguished and discussed three very general topics: the speciality of law, i.e. the genus-species relationship among legal concepts; the phenomena of total-partial antinomies and of concurrent and repetitive rules; the derogation among special and general rules in the context of legal justification.