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On the Puzzle Surrounding Hans Kelsen's Basic Norm

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Abstract:

Whereas fundamental norms in the juridico-philosophical tradition serve to impose constraints, Kelsen's fundamental norm—or basic norm (Grundnorm)—purports to establish the normativist character of the law. But how is the basic norm itself established? Kelsen himself rules out the appeals that are familiar from the tradition—the appeal to fact, and to morality. What remains is a Kantian argument. I introduce and briefly evaluate the Kantian and neo-Kantian positions, as applied to Kelsen's theory. The distinction between the two positions, I argue, is reflected in an ambiguity in the use of the term “regressive.”

Document Type: Research Article

DOI: http://dx.doi.org/10.1111/1467-9337.00156

Affiliations: Washington University, School of Law, St Louis, Missouri 63130-4899, USA

Publication date: September 1, 2000

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