Grundnorm Reference library
Australian Law Dictionary (3 ed.)
...Grundnorm ( basic norm ) A hypothetical basic norm (‘ought’ rather than ‘is’); the ultimate, foundational principle from which the validity of all norms can be drawn by the fact that they exist through connection to a prior norm, and so on, back to the basic, or ground norm ( Grundnorm ). In the theory of positive law developed by Hans Kelsen ( The Pure Theory of Law , 1934 ), there is a strict separation of law and morals, as there is also in hart . Kelsen saw law as a normative set of rules, unified (linked) by a chain of authority back to the...
Grundnorm
pure theory of law
Hans Kelsen
norms Reference library
Australian Law Dictionary (3 ed.)
...norms ( social ) The culturally engendered social expectations that govern the behaviour of people within a particular group or society, based on a combination of tradition and consensus, and supported by social approbation and sanctions ( adj normal ). See also grundnorm...
pure theory of law Reference library
Australian Law Dictionary (3 ed.)
...pure theory of law A theory, propounded by Hans Kelsen, that law should operate, and be studied, free of moral, economic or other influences. Law is seen as a series of norms arising from a foundational grundnorm...
Kelsen, Hans (1881–1973) Quick reference
A Dictionary of Philosophy (3 ed.)
...any ethical, political, or historical considerations, and finds the essence of the legal order in the ‘black letter’ or laid-down law. A system of law is based on a Grundnorm or ground rule, from which flows the validity of other statements of law in the system. The ground rule might be that some particular dictates or propositions, such as those of the sovereign, are to be obeyed. The Grundnorm can only be changed by political revolution. The theory is best known in its development in the Allgemeine Staatslehre ( 1925 , trs. and revised as General Theory...
normative theory Reference library
Encyclopaedic Dictionary of International Law (3 ed.)
...theory This theory, primarily associated with Hans Kelsen ( see Kelsen, Hans ), considers international law as being made up of a series of norms, ultimately deriving their validity from a basic norm (or Grundnorm ). In relation to customary law, this basic norm is that States should behave as they have customarily behaved; and in relation to treaty law, the related principle pacta sunt servanda . See Kelsen , General Theory of Law and State ( 1946 ), 328–388; Kelsen Principles of International Law ( 1952 ), passim . See also Engel , Law,...
absolute Reference library
Australian Law Dictionary (3 ed.)
...are asked to find guilt ‘ beyond reasonable doubt ’, not to look for absolute proof of guilt. (2) Also used in the sense of being foundational or fundamental , e.g. in contract law, for absolute breach (fundamental breach) of a condition . Similarly, Kelsen ( see grundnorm ) proposed absolute duty for the kinds of duties matched by fundamental rights (e.g. human rights protected by the charter of fundamental rights...
pure theory of law Quick reference
A Dictionary of Law (10 ed.)
...Y should be applied by an official to the offender. The theory therefore rules out all that cannot be objectively known, such as the social purpose of law, or its political functions. Law has only one function: the monopolization of force. Every society has a basic norm ( Grundnorm ) that must be accepted by the officials of that society for there to be an effective and valid legal...
Kelsen, Hans Reference library
John Finnis
The Oxford Companion to Philosophy (2 ed.)
...legal norms as norms (neither mere facts nor morally grounded), his sceptically positivist and ethically non-cognitivist work became more Humean after his emigration to America in 1940 . Every legal system's unity and validity derives, he argued, from its basic norm ( Grundnorm ): apply sanctions in accordance with the historically first (after the latest revolution) constitution and norms made thereunder. Juristic thought is possible only on the hypothesis, presupposition, or transcendental-logical postulate of the basic norm, which in late Kelsen is...
Hart, H. L. A. (1907–1992) Reference library
Australian Law Dictionary (3 ed.)
...and action which is involved in the existence of rules and which constitutes the normative structure of society’. He argued, in opposition to Austin, that a legal system is a set of ‘authoritative norms’ ( normative rules based on authority ), but that (unlike Kelsen’s grundnorm ), they are not necessarily coercive; some norms are merely facilitative in function, yet are at the same time of central importance to the system. See also legal positivism...
revolution Reference library
The New Oxford Companion to Law
...act, that of the ‘founders’ of a given state. Yet for the law to be normative, there must be some presupposition that the founders had authority to do as they did. This presupposition Kelsen calls a ‘basic norm’ or Grundnorm . Hence the test for the occurrence of a legal revolution can be cast in terms of discontinuity in the Grundnorm . The thesis about constitutional continuity is not dependent on the basic norm theory, however. Adoption of De Gaulle's proposed constitution established the French Fifth Republic in 1958 . It did so in a way not...
law, semiotics of Reference library
Encyclopedia of Semiotics
...who claimed that through acts of will a judge brings intentional meanings into a text. These meanings are subjective except that the judge's norms can be traced to higher and prior norms up to an inarticulated presupposition that Kelsen calls a fundamental norm ( Grundnorm ). For him, the Grundnorm was a presupposition of thought rather than an explicit statement ascribable to a historical author. The trace of norms transformed subjective meanings into authoritative, objective norms. Influenced by the earlier works of Ludwig Wittgenstein ( 1889–1951 ) and...
Shāṭibī, Abū Isḥāq Reference library
Ebrahim Moosa
Oxford Encyclopedia of the Islamic World: Digital Collection
...Shariʿah. He ranked public interests as 1. “necessity” ( ḍarūriyāt ), 2. “needs” ( ḥājiyāt ), and, 3. “improvements” ( taḥsīnāt ). The category of “necessary” advances the core universal values. In Kelsonian usage, they are the grundnorms of Shariʿah, namely to protect religion, life, reason, progeny, and wealth. If legal and ethical reasoning, in Shāṭibī’s view, ignores these purposive norms, the Muslim moral and juridical order is doomed. He visualized the cardinal...
North-South Views on Human Rights Reference library
Encyclopedia of Human Rights
...rights, outside the province of Chapter VII of the UN Charter (as especially elucidated by the ICJ in the Nicaragua case)—enhance the scope of imposition. NSD here also partly emerge concerning some nascent languages of “duty to respond” and such practices may undermine the grundnorm of “non intervention.” Postcolonial Enrichment of Human Rights Some inaugural acts of postcolonial constitution drafting offer some important new models of postliberal human rights. The well-known liberal human rights traditions remain based on the principle of methodological...
Theory and legitimacy Reference library
The Oxford Companion to the High Court of Australia
...highest point in relation to the defence power , and in relation to the concept of a nationhood power as an independent source of Commonwealth legislative capacity. The gradual move away from reliance on an external and therefore transcendent source of the Court's power—its grundnorm ( Hans Kelsen , The Pure Theory of Law ( 1967 )—has ushered in a radical change, for it has led the Court to draw on theories of democracy rather than sovereignty or history to ground its normative authority. The theoretical perspective adopted has a profound impact on...
Jurisprudence Reference library
The Oxford Companion to the High Court of Australia
...Finnis , and Richard Posner , as well as the jurisprudential influence of Justices such as Dixon . In Kable v DPP ( 1996 ), there are references to John Salmond on Jurisprudence (2nd edn 1907 ), to Hart's The Concept of Law ( 1961 ), and to Kelsen's concept of a grundnorm ; and again in the War Crimes Act Case to Kelsen's General Theory of Law and State ( 1949 ). In Trident and in Gala v Preston ( 1991 ), there are references to Stone's Precedent and Law ( 1985 ); and in Trident also to Dixon's 1955 speech ‘Concerning Judicial...
International Law and International Relations Reference library
Robert J. Beck
The International Studies Encyclopedia
...maintain and change a variety of different customary rules” (1999:50). Byers’s treatment of “legitimate expectation” was arguably a “cornerstone principle” for his understanding of the international legal system, one reminiscent of Kelsen’s analysis of international law’s grundnorm ( Barker 2000 :87). Although Custom has been criticized for failing systematically to test alternative explanations and for selecting cases that lacked substantial variation, the work has nevertheless been hailed for providing “a laudable example of the synergies and...
