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Dialogue and Universalism

Volume 23, Issue 2, 2013

Transcendental Philosophy in the 21St Century

Wojciech Włoch
Pages 25-42
DOI: 10.5840/du20132323

Epistemological–Normative Function of the Basic Norm in Hans Kelsen’s Pure Theory of Law

The objective of the article is to present Hans Kelsen’s basic norm concept that allows the combination of the two relevant dimensions in relation to juridical science, namely the positivity and validity of law. The role of the concept of basic norm is presented by the author of the Reine Rechtslehre with reference to Kant (read through the works by H. Cohen) as a concept enabling formulation of an answer to the question “To what extent is it possible to interpret certain facts as objectively valid legal norms?” The epistemological problem of the object of cognition of juridical science is connected with the issue of normativity. According to Kelsen, only the assumption of a certain nonpositive hypothetical norm regulating the legislation of norms of a given system enables normative interpretation of certain facts. The basic norm authorizes the way of issuing norms, yet not their content. The structure of the legal order creates a hierarchical system in which the higher category norms delegate the law-making power to create the lower category norms. The legal system creates a dynamic system of norms.

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