According to the will of which legislator? Kelsen's legal theory and the relevance of the conditions of the validity for the discussion on the methods of interpretation. Kelsens Rechtslehre und die Relevanz der Bedingungen der Geltung für die Diskussion über Auslegungsmethoden
The article investigates the relevance of the conditions for the validity of a legal text, taking into account the possibility of employing a method of interpretation that adopts the will of the legislator as parameter. Since legal norms are valid not only due to the fact that they were created through a valid form, but also because afterwards they have not lost their validity, the conditions required to assert the absence of derogation and desuetudo are analyzed in view of the circumstance that the validity of the interpreted text depends on this absence. Because the permanence of the legal text may be the result of an interpretation that does not take into account the will of the legislator, it is argued that the interpretation according to the will of the legislator neither secures democratic legitimacy for the application of law nor offers a method of interpretation that transforms legal interpretation into a pure act of cognition.
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Document Type: Research Article
Publication date: March 1, 2017
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- Archiv für Rechts- und Sozialphilosophie, edited by authorisation of the International Association for Philosophy of Law and Social Philosophy (IVR), is an international, peer-reviewed journal, first published in 1907. It features original articles on philosophical research on legal and social questions, covering all aspects of social and legal life.
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