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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And we can see why: Kelsen believed that the blamelessness associated with Germany’s political leaders and military leaders indicated a gross historical inadequacy of international law which could no longer be ignored.

Neither this thesis nor his habilitation thesis appears to have had a formal supervisor— “Autobiographie”. There are familiar questions connected with explaining legal normativity: For Kelsen, this hrundnorm in the definition of natural made it unusable in any practical sense for a modern approach to understanding the science of law. In Matthias Klatt ed.

Hans Kelsen

Second, there remain questions of how to interpret the provisions of the foundational text, and to determine what priority it has in that legal system in relation to other national and international legal norms. Kelsen was among the strongest critics of Carl Schmitt because Schmitt was advocating for the priority of the political concerns of the state over the adherence by the state to the rule of law.

In his book titled What is Justice? The Rise of Modern Judicial Review: By using this site, you agree to the Terms of Use and Privacy Policy. These kelsem works are cited in text as follows:.


Thus, whether you actually presuppose the relevant basic norm is a matter of choice, it is an ideological option, as it were, not something that is dictated by Reason.

Problems of the Stufenbaulehre: General Theory of Law and Statep.

Kelsen, Hart, and legal normativity

The normative system that is law, with its foundational norm, is necessarily separate from the normative system of a particular religion or a particular moral system.

The traditional legal philosophies at the time, were, Kelsen claimed, hopelessly contaminated with political ideology and moralizing on the one hand, or with attempts to reduce the law to natural or social sciences, on the other hand.

Kelsen’s time at Heidelberg was of lasting importance to gurndnorm in that he began to solidify his position of the identity of law and state from the initial steps he observed as being taken by Jellinek. Now, of course, the actions and events described here are not the law.

A common theme which was unavoidable for Kelsen within the many applications he encountered of grundnprm political philosophy was that of centralization and decentralization. Inhe also published his book-length study about international law entitled Principles of International Law in English, and reprinted in In political philosophy he was a defender of the state-law identity theory and an advocate of explicit contrast of the themes of centralization and decentralization in the theory of government.

This has resulted in one of the trundnorm debates within the general Kelsen community as to whether Kelsen became a Neo-Kantian himself after the encounter with Cohen’s work, or if he managed to keep his own non-Neo-Kantian position intact which he claimed was the prevailing circumstance when he first wrote his book in Keleen if Kelsen is quite wrong about this conditional nature of moral imperatives, he may be right about the law.


Furthermore, legal geundnorm are themselves organized in a hierarchical structure, manifesting a great deal grundnotm complexity but also a certain systematic unity. Legal norms frequently kelen what one ought to do or ought not to do. Sohn of Harvard, who have strongly endorsed it. This would seem to be the whole point of an anti-reductionist explanation of legal validity: During the s, Kelsen continued to promote his celebrated theory of the identity of law and state which made his efforts a counterpoint to the position of Carl Schmitt who advocated for the priority of the political concerns of the state.

Kelsen rightly noticed that legal norms necessarily come in systems. Suppose, for example, that in a given legal system the basic norm is that the constitution enacted by Rex One is binding.

Hans Kelsen – Wikipedia

The family moved to Vienna inwhen Hans was three years old. The closing chapter of Kelsen’s study of political allegory in Dante also was important for emphasizing the particular historical path which led directly to the development of modern law in the twentieth century.

The pure theory of law is in many ways dependent upon the logical regress of its hierarchy of superior and inferior norms reaching a centralized point of origination kdlsen the hierarchy which he termed the Basic normor, Grundnorm. A transcendental argument to simplify goes from a conclusion of what must be true, lest the ultimate conclusion be false, or, at any kelswn, unsupported.

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?