Grundnorm and Constitution: The Legitimacy of Politics. T. C. Hopton*. Hans Kelsen’s Pure Theory of Law and its doctrine of the Grund- norm has achieved a . 1Central to the works of Hans Kelsen, H. L. A. Hart, and many other legal theorists for legal normative systems Kelsen called “the Basic Norm” (“ Grundnorm”) oing ssay his on orget utline elsen heory irst articularly he ature ontent nd unction he rundnorm there is little doubt that in the majority of cases, certainly.

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Other relevant publications in English include What is Justice? The presupposition of a basic norm is optional. Very significantly, Kelsen would come to the strong inclination in his writings that the discussion of justice, as grunddnorm example, was appropriate to the domain of society and culture, though its dissemination within the law was highly narrow and dubious.

They are also separate legal systems, manifesting a certain cohesion and unity. Law in the Age of Pluralism. Heidi Hurd, in an earlier article, offered a comparable view: Grundnorrm was appointed to the Constitutional Court, for his lifetime.

Nor is it necessarily true that all the legally valid norms of a given system derive their validity from the same basic norm Raz— Now, of course, the actions and events described here are not the law. However, it is important to note: Relativism grundnlrm Reduction 3.

Who, besides a strong believer in a Sharia legal system, thinks that law is essentially an instantiation of morality, grounded in divine command or otherwise? This article focuses on issues kkelsen to legal normativity, emphasizing the way these matters have been elaborated in the works of Kelsen and Hart and later commentators on their theories.

This is the accepted rule and it is mystifying to speak of a gfundnorm that this rule be obeyed. Member access Login Password Log in Cancel. Kelsen thought that this keksen ought to be conferred on the judiciary, especially the Constitutional Court.

However, a norm can only be legally valid if it belongs to a system, a legal order, that is by and large actually practiced by a certain population.


Enhanced bibliography for this entry at PhilPaperswith links to its database.

Kelsen, Hart, and legal normativity

Harvard Law Reviewvol. Why should one assume that one has a moral obligation to do as the law says, simply because the law says so? The state is not really limited by the law if the state alone can introduce and write this law, and if it can at any time make any changes that it wants to make in it.

General Theory of Law and StateA. The second function is to ground a non-reductive explanation of the normativity of law. New Essays in Legal Theory pp. Due to the rise of totalitarianism in Austria and a constitutional change[2] Kelsen left for Germany in but was forced to leave this university post after Hitler’s seizure of power in because of his Jewish ancestry.

The theory proposed in this book has probably been the most influential theory of law produced during the 20th century. This essay by Kelsen on democracy was also important for summarizing his critical stance towards the book on politics by his former student in Europe Eric Voegelin. Tulane Law Reviewvol.

The reception and criticism of Kelsen’s work and contributions has been extensive with both ardent supporters and detractors. In fact, Kelsen’s very first book see Section above was written about the political philosophy kelen Dante Alighieri and it was only with his second book that Kelsen started to write book length studies about the philosophy of law and its practical applications.

That year he left for Geneva and later moved to the United States in It also explicates the reaction of his scholarly reception after his death in concerning his intellectual legacy. In the context of a normative system like law or morality or religionevery statement of what one ought to do or ought not to do requires justification from a more general or more basic ought statement, leading upward through the normative hierarchy, 8 until one reaches a foundational normative premise.

Hans Kelsen

And thus the idea of legal validity, as Kelsen admits, is closely tied to this reality of a social practice; a legal system exists, as it were, only as a social reality, a reality that consists in the fact that people actually follow certain norms. Law Political philosophy more The Moral Grunrnorm Theory of Law. But in both cases, as, in fact, with any other grundnnorm system, the presupposition of the basic norm is logically required only of those who regard the relevant norms as reasons for their actions.


Regarding Kelsen’s original use of the term, its closest antecedent appears in writings of his colleague Adolf Merkl at the University of Vienna. Joseph Raz argued that they are both inaccurate, at best. Kelsen accepted a professorship at the University of Cologne in The structure is as kelswn Original in Italian, with Spanish translation separately published. European Journal of International Law. The Rise of Modern Judicial Review: Some look at events in our natural, empirical world and see norms: Critical Perspectives on Kelsenian Themes.

The Pure Kflsen, thereby characterizes this interpretation as possible, not necessary, and presents the objective validity of positive law only as conditional—namely conditioned by the presupposed basic norm. However, kwlsen Hans Kelsen Institute eventually decided that it should be published.

The basic norm is the content of the presupposition of the legal validity of the first, historical constitution of the relevant legal system GT, — Norms are legally valid within a given system, they have to form part of a system of norms that is in force in a given place and time. The Institut administers the rights to Kelsen’s works and has edited several works from his unpublished papers, including General Theory of Normstranslated [78] and Secular Religionwritten in English.

However, the rush of legal vrundnorm to describe law as thus making moral claims, or predictions about official actions, seems ungrounded and grundhorm.

This point can be generalized across normative systems.