David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Philosophy and Social Criticism 32 (5):573-599 (2006)
Hans Kelsen refused to develop a democratic theory of the basic norm. Given that he expounded a strong distinction between law and politics as two separate scientific disciplines he consistently argued against any attempt to politicize legal science and corrupt its object of cognition. As a result, there has been very little discussion of the basic norm in relation to his democratic theory. This article attempts to fill this gap by tracing the relationship between the basic norm and democracy in Kelsens legal and political writings. More precisely, it maps Kelsens seminal distinction between autonomy and heteronomy onto his reflections on constitutional making and probes the anti-democratic implications of his theory of the basic norm as they undermine the normative foundations of democratic theory. The article concludes by addressing the question of whether it is possible to articulate a theory of the democratic ground norm, of democratic foundings with a normative content, by proposing the idea of an immanent, performative basic norm as the source of validity of a democratic constitutional order Key Words: Hannah Arendt basic norm constitu ere constitutional making democracy immanent norm Hans Kelsen.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Andreas Kalyvas (2008/2009). Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt. Cambridge University Press.
Panu Minkkinen (2005). Why is Law a Normative Discipline? On Hans Kelsen's 'Normology'. Res Publica 11 (3):235-249.
Joseph Raz (1979). The Authority of Law: Essays on Law and Morality. Oxford University Press.
Stanley L. Paulson (2000). On the Puzzle Surrounding Hans Kelsen's Basic Norm. Ratio Juris 13 (3):279-293.
Hans Kelsen (1992). Introduction to the Problems of Legal Theory: A Translation of the First Edition of the Reine Rechtslehre or Pure Theory of Law. Oxford University Press.
B. Celano (2000). Kelsen's Concept of the Authority of Law. Law and Philosophy 19 (2):173-199.
Enrico Pattaro (2008). Hans Kelsen's Normativist Reductionism. Ratio Juris 21 (2):268-280.
Uta Bindreiter (2002). Why Grundnorm?: A Treatise on the Implications of Kelsen's Doctrine. Kluwer Law International.
Lars Vinx (2007). Hans Kelsen's Pure Theory of Law: Legality and Legitimacy. Oxford University Press.
Added to index2009-01-28
Total downloads30 ( #63,693 of 1,139,887 )
Recent downloads (6 months)1 ( #165,020 of 1,139,887 )
How can I increase my downloads?