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Overview

Grundnorm

Subject: Law

(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 ...

Grundnorm

Grundnorm   Reference library

Australian Law Dictionary (3 ed.)

Reference type:
Subject Reference
Current Version:
2018
Subject:
Law
Length:
303 words

...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

Grundnorm  

Reference type:
Overview Page
Subject:
Law
(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 ...
pure theory of law

pure theory of law  

Reference type:
Overview Page
Subject:
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.[...]
Hans Kelsen

Hans Kelsen  

Reference type:
Overview Page
Subject:
Philosophy
(1881–1973)Austrian jurist and philosopher of law. Kelsen is known for the most rigorous development of a ‘positivist’ theory of law, i.e. one that rigorously excludes from its analysis any ethical, ...
Kelsen, Hans

Kelsen, Hans (1881–1973)   Quick reference

A Dictionary of Philosophy (3 ed.)

Reference type:
Subject Reference
Current Version:
2016
Subject:
Philosophy
Length:
133 words

...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

normative theory   Reference library

Encyclopaedic Dictionary of International Law (3 ed.)

Reference type:
Subject Reference
Current Version:
2009
Subject:
Law, International Law
Length:
98 words

...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,...

Kelsen, Hans

Kelsen, Hans   Reference library

John Finnis

The Oxford Companion to Philosophy (2 ed.)

Reference type:
Subject Reference
Current Version:
2005
Subject:
Philosophy
Length:
172 words

...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...

pure theory of law

pure theory of law   Quick reference

A Dictionary of Law (10 ed.)

Reference type:
Subject Reference
Current Version:
2022
Subject:
Law
Length:
155 words

...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...

revolution

revolution   Reference library

The New Oxford Companion to Law

Reference type:
Subject Reference
Current Version:
2009
Subject:
Law
Length:
534 words

...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

law, semiotics of   Reference library

Encyclopedia of Semiotics

Reference type:
Subject Reference
Current Version:
2007
Subject:
Language reference, Linguistics
Length:
2,114 words

...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

Shāṭibī, Abū Isḥāq   Reference library

Ebrahim Moosa

Oxford Encyclopedia of the Islamic World: Digital Collection

Reference type:
Subject Reference
Current Version:
2022
Subject:
Religion
Length:
1,184 words

...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

North-South Views on Human Rights   Reference library

Encyclopedia of Human Rights

Reference type:
Subject Reference
Current Version:
2009
Subject:
Law, Human Rights and Immigration, Social sciences
Length:
3,637 words

...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

Theory and legitimacy   Reference library

The Oxford Companion to the High Court of Australia

Reference type:
Subject Reference
Current Version:
2007
Subject:
Law
Length:
1,746 words

...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

Jurisprudence   Reference library

The Oxford Companion to the High Court of Australia

Reference type:
Subject Reference
Current Version:
2007
Subject:
Law
Length:
3,258 words

...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

International Law and International Relations   Reference library

Robert J. Beck

The International Studies Encyclopedia

Reference type:
Subject Reference
Current Version:
2017
Subject:
Social sciences, Politics, Warfare and Defence
Length:
15,812 words

...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...

pure theory of law

pure theory of law   Reference library

Australian Law Dictionary (3 ed.)

Reference type:
Subject Reference
Current Version:
2018
Subject:
Law
Length:
37 words

...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...

norms

norms   Reference library

Australian Law Dictionary (3 ed.)

Reference type:
Subject Reference
Current Version:
2018
Subject:
Law
Length:
40 words

...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...

absolute

absolute   Reference library

Australian Law Dictionary (3 ed.)

Reference type:
Subject Reference
Current Version:
2018
Subject:
Law
Length:
165 words

...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...

Hart, H. L. A.

Hart, H. L. A. (1907–1992)   Reference library

Australian Law Dictionary (3 ed.)

Reference type:
Subject Reference
Current Version:
2018
Subject:
Law
Length:
179 words

...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...

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