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Vol 24 No 2 Feb/March 2019

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

ISBN13: 9789041118677
ISBN: 9041118675
Published: December 2002
Publisher: Kluwer Law International
Country of Publication: The Netherlands
Format: Hardback
Price: Out of print

Who presupposes Kelsen's basic norm? Is it possible to defend the presupposition in a way that is convincing? And what difference does the presupposition make? Endeavouring to highlight the role of basic assumptions in the law, the author argues that the verb ""to presuppose"", with Kelsen, has not only a conceptual but also a normative dimension; and that the expression ""presupposing the basic norm is adequate in so far as it marks the descriptive-normative nature of utterances made in specifically legal speech-situations. Addressed to legal theorists in general, the treatise purports to show that Kelsen's doctrine lends itself to an interpretation according to which the very act of ""presupposing"" the Grundnorm can be understood as a Grund, that is, the normative source of all positive law; and, what is more, that this interpretation admits of addressing the issue of the (formal) legitimacy of supra-national and directly applicable rules and other norms.

Acknowledgements. Table of Abbreviations. Introduction. Part I: Traditional Theories: Kelsen v. Hart.
1. Kelsen's Doctrine of the Basic Norm.
2. Hart's Doctrine of the Rule of Recognition.
3. Choice of Doctrine. Part II: Juristic Consciousness.
1. Presupposing the Basic Norm I.
2. Presupposing the Basic Norm II.
3. Summary and Conclusion. Part III: Kelsen and Beyond.
1. Norm Conflicts.
2. Directly Applicable EC Law. Part IV: Why Kelsen's Basic Norm? 1. Democracy on the Supra-National Level.
2. A Basic Norm for EC Law.
3. Outlook. Bibliography.