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Normativity and NormsCritical Perspectives on Kelsenian Themes$
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Stanley L. Paulson

Print publication date: 1999

Print ISBN-13: 9780198763154

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198763154.001.0001

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Kelsen and Legal Power *

Kelsen and Legal Power *

(p.434) (p.435) 23 Kelsen and Legal Power*
Normativity and Norms

Norberto Bobbio

Oxford University Press

In general legal and political theory, norm and power are two sides of the same coin. Of these two sides of the same coin, some theories of state emphasize the first, others the second. Indeed, general legal and political theories can be divided into two broad categories according to whether they affirm the primacy of power over norms, or of norms over power. Hans Kelsen's theory, which places at the apex of the system the basic norm, not sovereign power, considers the state (and any other organized power) from the standpoint of normativity. His theory can be interpreted as the most radical and throughgoing attempt to reduce the state to a legal or normative system, and to eliminate every form of dualism of law and state, truncating with one fell swoop the boring, sterile dispute over whether the state precedes the law or law the state. This chapter focuses on the problem of legal power as an instance of subjective law, with Kelsen comes of define only in his later works.

Keywords:   Hans Kelsen, legal power, norm, state, sovereign power, dualism of law

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