Instituting Authority. Some Kelsenian Notes

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Abstract:

A rule of recognition for a legal order L seems utterly circular if it refers to behaviour of “officials.” For it takes a rule of recognition to identify who, for L, counts as an official and who does not. I will argue that a Kelsenian account of legal authority can solve the aporia, provided that we accept a, perhaps unorthodox, re-interpretation of Kelsen's norm theory and his idea of the Grundnorm. I submit that we should learn to see it as the vanishing point rather than the final basis of validity in a legal order. To prepare the ground for this proposal, I will briefly explore the claim to authority that is characteristic of politics. Then I sketch a multi-layered canonical form of the legal norm, including their “empowering” character (Paulson) in terms of performative operators. I show how it leads to a “perspectival” account of the basic norm. In conclusion, I briefly point to the example of sovereignty and acquis communautair in international law to illustrate this view

Document Type: Research Article

DOI: http://dx.doi.org/10.1111/1467-9337.00205

Affiliations: Faculty of Law, Tilburg University, The Netherlands roermund@kub.nl

Publication date: June 1, 2002

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