Lex posterior priori derogat, lex specialis derogat gererali. Jalons pour une histoire des conflits de normes centrée sur ces deux solutions concurrentes
Résumé
Lex posterior derogat priori, lex specialis derogat generali, Guidelines for a history of conflictingnorms with a focus on these two competing solutions. – The two Latin maxims, Lex posterior derogatpriori and Lex specialis derogat generali, sometimes presented as evidentially logical, have acomplex history and a delicate relationship (whereas the latter can contradict the former). Theytake their origins in the Digest, but in rather paradoxical forms: Lex posterior is coming from atext written in Greek by Modestinus, lex generalis is induced from a general regula exposed byPapinianus. How have these two ways of resolving the problem of conflicting norms emergedin Roman law? How have they been quoted and explained in canon and in civil law during theMiddle Ages? How have they been used by sovereigns and in which scope do they serve thefoundations of modern States? This paper tries to answer these questions by analyzing texts wherethe two maxims are mentioned and proposes to treat this subject as a significant chapter of thehistory of the sources of law.