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The article explores the role of the theory of «rules of recognition» by Oxford professor H.L.A. Hart in the contemporary theory of Anglo-American legal positivism, introduced by him in his central work «The Concept of Law» (1961), which has a significant influence on contemporary legal theory and philosophy. The authors reveal the content and meaning of the concept of «rules of recognition» as part of the secondary rules-«rules about rules» or «procedural rules» which determine the criteria for the validity of law along with the «rules of change» and the «rules of adjudication» in H.L.A. Hart’s terminology. The authors demonstrate the correlation with the «Grundnorm» of German legal philosophter H. Kelsen, which is more common in the Ukrainian legal theory, and which justifies the existence of constitutional norms as fundamental ones which determine the recognition of law by society and its individuals. The authors analyze the main positions of H.L.A. Hart’s followers-J. Raz, M. Kramer, B. Bix, S. Shapiro and others-regarding this theory and highlights the criticism of its individual provisions. The authors highlight how H.L.A. Hart tried to explain by the «rules of recognition» how law at the fundamental level is a matter of social convention (agreement between people inside the inhabited society), defending one of the components of legal positivism-the thesis of social fact (social sources of law thesis). The authors examine the interdependence between law and coercion by the State, the role of social practice in society’s subordination to law, the role of moral norms in the formation of law, in particular, the «rule of recognition», the correlation between the concepts of «rule of recognition» and «legal validity», and the problem of law enforcement by judges and governmental officials of the «rule of recognition». The authors summarize how H.L.A. Hart eliminates morality from the content of law in motivating judges and governmental officials to apply the rules of law, clarifies the position of legal positivism on the issue of the grounds for society’s submission to law, and demonstrates how the «empirical» theory of recognition prevails over the «analytical» theory, using R. Alexy terminology. [ABSTRACT FROM AUTHOR]

This article explores the possibility of reconstructing Hans Kelsen's neo-Kantian theory of the basic norm (Grundnorm) with the help of the theory of (metaphysical) grounding. First, we outline Kelsen's theory of the basic norm as an integral part of his neo-Kantian transcendental idealism and give a sketch of grounding theory; we then try to fit these theories together. As it turns out, grounding theory has some internal flaws. More importantly, several of the features of a metaphysical ground are not compatible with the roles which Kelsen ascribes to the basic norm – its roles as a keystone of the legal hierarchy and as a transcendental-logical condition of legal cognition. Finally, an alternative conception is examined, according to which the legal system is grounded not by the basic norm but by social facts, with the basic norm serving as a bridging principle. However, this alternative is flawed as well; its main problem seems to be that it violates the dualism of 'Is' and 'Ought'. The argument is relevant for the concept of personhood, because Kelsen treats the term 'person' in law as a mere expression for the unity of a specific set of legal norms, so that the identity of persons is ultimately dependent on the identity and function of the basic norm of the legal system. [ABSTRACT FROM AUTHOR]

Copyright of Pravnik is the property of Czech Academy of Sciences, Institute of State & Law and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This article explores how an unconstitutional constitutional amendments doctrine could be abused to advance an illiberal or even authoritarian agenda, with Indonesia as a case study. In Indonesia, there is a pervasive belief that the five fundamental principles of the state (the Pancasila) are the 'basic norm' of the Indonesian legal order. Based on this understanding, it has been argued that all positive laws, including constitutional amendments, must be consistent with the Pancasila. At the same time, there is a danger lurking behind this idea. The four amendments to the 1945 Constitution, which have ushered in a new era of democracy, have been claimed to be repugnant to the Pancasila. Consequently, a future authoritarian president could invoke this doctrine to revert to the original 1945 Constitution, which has enabled two authoritarian regimes in the past. Nevertheless, this threat could be minimised by applying the concepts of constituent and constituted powers. [ABSTRACT FROM AUTHOR]

The term validity of legal norms usually means the obligation of legal norms for entities whose behavior is regulated by a legal norm. In legal theory, the concept of validity of law is used in a different sense. Kelzen's idea of the validity of law stems from his so-called gradation theory according to which each legal norm is valid on the basis of an immediately higher legal norm, while at the head of the hierarchy is the constitution as the highest legal norm, which bases its validity on the assumed norm. According to Kelzen, a legal norm derives its validity, that is, its obligation, not from its content but from its form. In this sense, legal norms are valid because they are ideally obligatory, regardless of the fact whether subjects are familiar with them and their content. Kelzen puts special emphasis on distinguishing the validity of law from the efficacy of law. While the validity of law means that legal norms are mandatory, that is, that subjects should behave in the manner described in the norm itself, the effectiveness of law means that the addressees actually behave in the manner prescribed by the legal norm. However, although Kelsen separates the validity and effectiveness of a legal norm, he still believes that there is a connection between validity and effectiveness because only an effective norm is considered valid.

Contemporary theoretical discourse views animals as a vulnerable group, and also recognizes their capability of mental suffering. The question why this recognition has not been translated into a global and universally accepted accordance of fundamental rights to certain groups of animals is relevant for animal rights protection, while at the same time it illustrates the divide between the idealistic and normative dimensions of law. It appears that humans have known for thousands of years that at least some animals are capable of mental suffering and constitute a vulnerable group. Changes in animal rights protection have led to some changes in legislation, but these are not fundamental and do not concern the strive toward universal recognition that animals have fundamental rights. This means that there must be some other, decisive factors that are needed to move forward from the stage of vulnerability recognition to the normative development stage.

The article examines the notion of “common constitutional traditions” of the European Union Member States looking for the content of this open-ended term. It is agreed and even on the international level that fundamental rights are the part of the common constitutional traditions, but in this article, it is suggested to connect the notion with the notion of the general principles of law thus obtaining more comprehensive and elaborate understanding of what the content of the common constitutional traditions really involve. General principles of law are a common source of law to all the legal arrangements of the European Union Member States as they are derived from the same Basic Norm – democratic state based on the Rule of Law, and fundamental rights are only one part of the general principles of law as they are much wider notion. That is why looking from the perspective of the general principles of law as common source of law of all the legal arrangements based on the Basic Norm – democratic state based on the Rule of Law common constitutional traditions besides the human rights involve also legal methods and those general principles of law which govern the system requirements for the legal arrangement.

Copyright of Quaestio Iuris (QI) is the property of Editora da Universidade do Estado do Rio de Janeiro (EdUERJ) and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The article examines the notion of “common constitutional traditions” of the European Union Member States looking for the content of this open-ended term. It is agreed and even on the international level that fundamental rights are the part of the common constitutional traditions, but in this article, it is suggested to connect the notion with the notion of the general principles of law thus obtaining more comprehensive and elaborate understanding of what the content of the common constitutional traditions really involve. General principles of law are a common source of law to all the legal arrangements of the European Union Member States as they are derived from the same Basic Norm – democratic state based on the Rule of Law, and fundamental rights are only one part of the general principles of law as they are much wider notion. That is why looking from the perspective of the general principles of law as common source of law of all the legal arrangements based on the Basic Norm – democratic state based on the Rule of Law common constitutional traditions besides the human rights involve also legal methods and those general principles of law which govern the system requirements for the legal arrangement. [ABSTRACT FROM AUTHOR]

The traditional and majoritarian view about Kelsen's doctrine of the basic norm has affirmed that Kelsen had drastically changed its philosophical status in the early 1960s, when he allegedly began to characterise it as a fiction in the sense of Vaihinger's philosophy of the as if. In the present paper, I challenge this view and defend the claim that from the beginning until the end of his professional career, Kelsen conceived the basic norm as a presupposition. In my view, Kelsen explored the connection between the basic norm as a presupposition and different philosophical orientations, including Vaihinger's philosophy, but the basic norm remained, in the course of the evolution of the Pure Theory of Law, essentially a presupposition or hypothesis. [ABSTRACT FROM AUTHOR]

Copyright of Godišnjak Pravnog Fakulteta u Sarajevu is the property of Godisnjak Pravnog Fakulteta u Sarajevu and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Revus: Journal for Constitutional Theory & Philosophy of Law is the property of Revus - European Constitutionality Review and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The validity of the legal system was thought by jus philosophers such as Hans Kelsen and Herbert Hart, respectively, the fundamental hypothetical norm and the rule of recognition. This article will address these concepts, with the goal of conducting a comparative study between the two, and then pointing out their similarities and differences. To do so, we used the deductive approach and bibliographic research. At the end of the article, similarities were perceived, both being theoretical constructions of legal positivism of criterion of validity for the legal order, and differences, a logical-transcendental presupposition of validity (Kelsen) as an element of fact of validity (Hart). [ABSTRACT FROM AUTHOR]

This article focuses on issues relating to legal normativity, emphasizing the way these matters have been elaborated in the works of Kelsen and Hart and later commentators on their theories. First, in Section 2, the author offers a view regarding the nature of law and legal normativity focusing on Kelsen's work (at least one reasonable reading of it). The argument is that the Basic Norm is presupposed when a citizen chooses to read the actions of legal officials in a normative way. In this Kelsenian approach, all normative systems are structurally and logically similar, but each normative system is independent of every other system - thus, law is, in this sense, conceptually separate from morality. Second, in Section 3, the author turns to Hart's theory, analyzing the extent to which his approach views legal normativity as sui generis. This approach raises questions regarding what has become a consensus view in contemporary jurisprudence: that law makes moral claims. The author shows how a more deflationary (and less morally-flavored) understanding of the nature of law is tenable, and may, in fact, work better than current conventional (morality-focused) understandings. [ABSTRACT FROM AUTHOR]

Two major questions stem from the fundamental shift in Hans Kelsen's legal philosophy that takes place in 1960 and the years thereafter: first, the scope of the shift and, second, its explanation. On the first question, I argue that the shift is not limited to Kelsen's rejection of the applicability of logic to legal norms. Rather, it reaches to his rejection of the entire Kantian edifice of his earlier work. On the second question, I argue that the explanation for the shift has a conceptual dimension as well as a historico-biographical dimension. That is, I argue that Kelsen's rejection of the principle of non-contradiction vis-à-vis legal norms reaches to the Kantian edifice in that the principle was presupposed in Kelsen's earlier work and appears, expressis verbis, in his 'Kantian filter'. And I argue that certain historico-biographical data are germane, including, quite possibly, the earlier revolution in Kelsen's thought, that of 1939-40. [ABSTRACT FROM AUTHOR]

This paper discusses the main criticism launched against legal monism and the Pure Theory of Law, as envisaged by Hans Kelsen and the other proponents of the Vienna School of Jurisprudence, namely the criticism voiced by two of the most eminent legal theorists, HLA Hart and Joseph Raz. According to them, legal monism fails to offer a satisfactory theory of the identity of legal systems and it therefore simply cannot be considered a viable theory of legal systems, because it leads to obviously absurd consequences. These arguments which take the form of an attack on the most basic tenets of the Pure Theory of Law and thus legal monism, will be duly addressed and consequently rebutted in this paper, particularly in order to be able to maintain legal monism in its juridico-epistemological manifestation as a working and viable theory of the law. [ABSTRACT FROM AUTHOR]

The normative theory of law developed by one of its greatest pre-war supporters, František Weyr, has been the result of a critical analysis of the previously dominant forms of legal research. The Czech philosopher of law addressed in a polemic manner several assumptions of the so called traditional study of law. He paid much attention, especially, to the concept of the state. Because of the philosophical foundations of his theory and his methodological carefulness, Weyr followed a monistic conception of the state and law. This fact determined his specifi c approach to state sovereignty (normative order), different from that proposed by Georg Jellinek and Jiři Pražak. The founder's of the Brno neo-Kantian school of law approach to the concept of sovereignty was associated with his support for a monistic idea of international law and state law, along with the notion of supremacy of international law. The negation of the sovereignty of the state normative orders lent the Weyr's theory a pacifi st dimension and contributed to implementation of his political thought. [ABSTRACT FROM AUTHOR]