Philosophy Of Legislation
The interaction of these norms is then additional subject to representation as a static theory of legislation (Kelsen’s chapter four) or as a dynamic concept of regulation (Kelsen’s chapter 5). The third function is to explain the systematic nature of legal norms.
The basic norm, he says, is an accepted custom, or in Kelsen’s full wording, “when the customized by means of which the structure has come into existence or the structure-creating act consciously performed by certain human beings, is objectively interpreted as a norm-creating fact.” then a primary norm exists.
Though moral objectivism is sometimes equated with ethical realism (see, e.g., Moore 1992, one hundred ninety: “the truth of any ethical proposition lies in its correspondence with a mind- and convention-impartial moral reality”), the relationship between the 2 theories is controversial.
Thus, conceptual theories of regulation have traditionally been divided into two predominant categories: these like pure law authorized theory that affirm there’s a conceptual relation between legislation and morality and people like authorized positivism that deny such a relation.
That these two fundamental norms, or points of view, can come aside, is nicely demonstrated by Kelsen’s remark that even an anarchist, if he have been a professor of regulation, may describe constructive law as a system of legitimate norms, with out having to approve of this legislation” (PT2 218n).