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Why Grundnorm? A Treatise on the Implications of Kelsen's Doctrine

Bindreiter, Uta LU (2000)
Abstract
The treatise is concerned with the source-—the “Grund”--of the bindingness of law. I contend, first, that the “presupposition” of the basic norm, on a certain reading of Kelsen’s doctrine, can be understood as constituting a normative source of positive law, and, secondly, that this reading of Kelsen admits of addressing the issue of the (formal) legitimacy of supra-national and “directly applicable” rules and other norms.



The issue of the basic norm problematic is addressed by posing and answering three questions, namely: (1) Who presupposes the basic norm? (2) Is it possible to defend the presupposition in a way that is convincing? and (3) What difference does the presupposition make? From taking up and applying... (More)
The treatise is concerned with the source-—the “Grund”--of the bindingness of law. I contend, first, that the “presupposition” of the basic norm, on a certain reading of Kelsen’s doctrine, can be understood as constituting a normative source of positive law, and, secondly, that this reading of Kelsen admits of addressing the issue of the (formal) legitimacy of supra-national and “directly applicable” rules and other norms.



The issue of the basic norm problematic is addressed by posing and answering three questions, namely: (1) Who presupposes the basic norm? (2) Is it possible to defend the presupposition in a way that is convincing? and (3) What difference does the presupposition make? From taking up and applying doctrines that are drawn from inquiries into what H.L.A. Hart called the “internal aspect” of rules, it becomes clear that internality-—in Kelsenian parlance: the “juristic consciousness”-—is ambivalent in itself and that the ultimate measure of legal argumentation is the legal audience. In the final section of the treatise, I shift perspective: Investigating into the reasons that underlie the risk of conflict inherent in the relationship between the European Court of Justice and authoritative national courts, I argue that the normative “ground” suggested in Part Two--the presupposition of the basic norm as a "Grund" for legal argumentation--is affected, in our times, by the inclusion of democracy. (Less)
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author
opponent
  • Professor Tuori, Kaarlo, University of Helsinki
organization
publishing date
type
Thesis
publication status
published
subject
keywords
recognition, Pure Theory, presupposition, precedence, norm hierarchy, norm conflict, membership, "legal ‘ought’", Grundnorm, direct applicability, Basic norm, bindingness, validity., Philosophy of law, theory of law, Rättsfilosofi, rättsteori
pages
345 pages
defense location
Carolinasalen, Kungshuset, Lundagård, Lund.
defense date
2000-06-03 10:15
external identifiers
  • other:ISRN LUJUDV/JUAR-00/1001
ISBN
91-628-4229-3
language
English
LU publication?
yes
id
b3993004-2047-47e8-b517-79be56c11645 (old id 19789)
date added to LUP
2007-05-25 08:32:37
date last changed
2016-10-11 09:04:33
@phdthesis{b3993004-2047-47e8-b517-79be56c11645,
  abstract     = {The treatise is concerned with the source-—the “Grund”--of the bindingness of law. I contend, first, that the “presupposition” of the basic norm, on a certain reading of Kelsen’s doctrine, can be understood as constituting a normative source of positive law, and, secondly, that this reading of Kelsen admits of addressing the issue of the (formal) legitimacy of supra-national and “directly applicable” rules and other norms.<br/><br>
<br/><br>
The issue of the basic norm problematic is addressed by posing and answering three questions, namely: (1) Who presupposes the basic norm? (2) Is it possible to defend the presupposition in a way that is convincing? and (3) What difference does the presupposition make? From taking up and applying doctrines that are drawn from inquiries into what H.L.A. Hart called the “internal aspect” of rules, it becomes clear that internality-—in Kelsenian parlance: the “juristic consciousness”-—is ambivalent in itself and that the ultimate measure of legal argumentation is the legal audience. In the final section of the treatise, I shift perspective: Investigating into the reasons that underlie the risk of conflict inherent in the relationship between the European Court of Justice and authoritative national courts, I argue that the normative “ground” suggested in Part Two--the presupposition of the basic norm as a "Grund" for legal argumentation--is affected, in our times, by the inclusion of democracy.},
  author       = {Bindreiter, Uta},
  isbn         = {91-628-4229-3},
  keyword      = {recognition,Pure Theory,presupposition,precedence,norm hierarchy,norm conflict,membership,"legal ‘ought’",Grundnorm,direct applicability,Basic norm,bindingness,validity.,Philosophy of law,theory of law,Rättsfilosofi,rättsteori},
  language     = {eng},
  pages        = {345},
  school       = {Lund University},
  title        = {Why Grundnorm? A Treatise on the Implications of Kelsen's Doctrine},
  year         = {2000},
}