Issues with the Stufenbaulehre: The Failure of the Notion of Derivation and Perspectives on the Pure Theory of Law
Jakab, András
Issues with the Stufenbaulehre: The Failure of the Notion of Derivation and Perspectives on the Pure Theory of Law - 2007.
97
The Stufenbaulehre ( SL) is a central and founding element of the Pure Th e ory of Law ( PTL). Most of the criticism of SL can be refuted. However, there is one fatal criticism. It concerns the foundations of the SL project, 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 actually valid, is outside of the explanatory scope of SL. This has serious consequences. Without this derivation, SL cannot survive; and without SL, PTL cannot either.
Issues with the Stufenbaulehre: The Failure of the Notion of Derivation and Perspectives on the Pure Theory of Law - 2007.
97
The Stufenbaulehre ( SL) is a central and founding element of the Pure Th e ory of Law ( PTL). Most of the criticism of SL can be refuted. However, there is one fatal criticism. It concerns the foundations of the SL project, 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 actually valid, is outside of the explanatory scope of SL. This has serious consequences. Without this derivation, SL cannot survive; and without SL, PTL cannot either.
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