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PHIL 348 - Kelsen: The Dynamic Aspect of Law.doc

2 Pages

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PHIL 348
Storrs Mc Call

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Law – a system of norms that regulate the behaviour of men The reason for the validity of a norm – the reason why the norm ought to be obeyed – cannot be a fact. A descriptive statement cannot spawn a normative statement (Hume). “The mere fact that somebody commands something is no reason to regard the command as a valid norm” (15). “Only a competent authority can create valid norms; and such competence can only be based on a norm that authorizes the issuing of norms. The authority authorized to issue norms is subject to that norm in the same manner as the individuals are subject to the norms issued by the authority” (15). This process, therefore, “must end with a norm which, as the last and highest, is presupposed. It must be presupposed because it cannot be 'posited'” (16). This is the “basic norm.” The Reason for the Validity of a Legal Order “A legal norm is not valid because it has a certain content, that is, because its content is logically deducible from a presupposed basic norm, but because it is created in a certain way – ultimately in a way determined by a presupposed basic norm... Therefore any kind of content might be law” (16). “The basic norm is that norm which is presupposed when the custom through which the constitution has come into existence or the constitution-creating act consciously performed by certain human beings, is objectively interpreted as a norm-creating fact” (16). “The basic norm determines the basic fact of law creation” (16). “If we ask for the reason of the validity of the historically first constitution, then the answer can only be (if we leave aside God or 'nature') that the validity of this constitution – the assumption that it is a binding norm – must be presupposed if we want to interpret (1) the acts performed according to it as the creation or application of valid general legal norms; and (2) the acts performed in application of these general norms as the creation or application of valid individual legal norms” (17). “In short: One ought to behave as the constitution prescribes)” (17). Legitimacy and Effectiveness Principle of Legitimacy - “The norms of a l
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