Premium
Instituting Authority. Some Kelsenian Notes[Note 1. A first version of this paper was presented in ...]
Author(s) -
Roermund Bert Van
Publication year - 2002
Publication title -
ratio juris
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.344
H-Index - 10
eISSN - 1467-9337
pISSN - 0952-1917
DOI - 10.1111/1467-9337.00205
Subject(s) - sketch , norm (philosophy) , sovereignty , performative utterance , interpretation (philosophy) , politics , order (exchange) , law , character (mathematics) , epistemology , legal norm , sociology , law and economics , political science , computer science , mathematics , philosophy , linguistics , business , algorithm , geometry , finance
A rule of recognition for a legal order L seems utterly circular if it refers to behaviour of “officials.” For it takes a rule of recognition to identify who, for L , counts as an official and who does not. I will argue that a Kelsenian account of legal authority can solve the aporia, provided that we accept a, perhaps unorthodox, re‐interpretation of Kelsen's norm theory and his idea of the Grundnorm . I submit that we should learn to see it as the vanishing point rather than the final basis of validity in a legal order. To prepare the ground for this proposal, I will briefly explore the claim to authority that is characteristic of politics. Then I sketch a multi‐layered canonical form of the legal norm, including their “empowering” character (Paulson) in terms of performative operators. I show how it leads to a “perspectival” account of the basic norm. In conclusion, I briefly point to the example of sovereignty and acquis communautair in international law to illustrate this view