Problems of the Stufenbaulehre: Kelsen's Failure to Derive the Validity of a Norm from Another Norm
Posted: 21 Jun 2007
The Stufenbaulehre is a central and founding element of the Pure Theory of Law (PTL). Most of the criticism of Stufenbaulehre targets the idea of the basic norm (Grundnorm), however unjustified. This criticism stems from a misunderstanding of the presumptive character of the basic norm and of the whole legal order. Others have criticised the relativisation of the difference between individual and general norms, Kelsen's monism, and the determination of the validity of a norm by a single other norm. This can be refuted as well - either because their critique does not concern an essential part of Stufenbaulehre (monism), or because Stufenbaulehre can be saved by making a small modification to it. However, there is one lethal criticism. It concerns the founding thought of the whole Stufenbaulehre, i.e., the derivation of validity. In a law-making process, there is never a derivation of validity: the logical result of a law-making process is only a norm saying "The new norm ought to be valid." Whether the new norm is in fact valid, is a different issue which is not dealt with by the PTL. This has serious consequences: Without this derivation Stufenbaulehre cannot survive, and without Stufenbaulehre, PTL cannot survive either. Some valuable parts of PTL might be used in other legal theories, but these are nothing but transplanted organs from the dead body of PTL whose heart - Stufenbaulehre - can no longer keep the body alive.
Keywords: Kelsen, basic norm
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