Kelsen's Theory of the Basic Norm*
Of all the various doctrines of Kelsen's legal philosophy it is his theory of the basic norm that has attracted most attention and captured the imagination of many scholars. It has acquired enthusiastic devotees as well as confirmed opponents. Both admirers and critics owe much to the obscure way in which Kelsen explains his theory. The obscurity was criticized and led people to suspect that the whole theory is a myth; but it also provided admirers trading on ambiguities with an easy escape from criticism. This chapter attempts to demythologize the theory. It offers an explanation of the concept of the basic norm as Kelsen's attempt to provide an answer to some well-known jurisprudential problems. It argues that the attempt has not been altogether successful but its failure is illuminating. It sheds light on the intricacies of the problems involved and on their possible solutions.
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