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basic norm


Subject Philosophy

DOI: 10.1111/b.9781405106795.2004.x


Extract

P hilosophy of law A term introduced by the Austrian legal philosopher Hans Kelsen . As a legal positivist , Kelsen objected to the reduction of the validity of law to morality. How, then, are we to account for the source of legal validity? Kelsen claims that law is a system of norms. Each lower-level norm derives its authority from norms at a higher level. This chain of validation will eventually lead to an ultimate norm, that is, a basic norm (German Grundnorm ) which, at the historical starting-point of norm creation conferred legislative power on the fathers of the first constitution. A basic norm is a presupposition that must be assumed by anyone who seeks to explain our knowledge of positive law. As the ultimate power-conferring source, the basic norm corresponds to Austin 's command of the sovereign and Hart 's rule of recognition . “Coercive acts ought to be carried out only under the conditions and in the way determined by the ‘fathers’ of the constitution or the organs delegated by them. This is, schematically formulated, the basic norm of the legal order of a single state.” Kelsen, General Theory of Law and State ... log in or subscribe to read full text

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