Private Legislation Idea
The content material of the fundamental norm of any given legal system is decided by the precise practices that prevail in the related neighborhood. Paulson, S., 2002, Introduction to Kelsen’s Introduction to the Problems of Authorized Idea, p. xvii, Oxford: Clarendon Press. In Chapter Four, Kelsen distinguishes the static idea of legislation from the dynamic theory of law.
In doing so, I’ll attempt to isolate the distinctive nature of authorized establishments by contrasting them with closely associated phenomena, comparable to parenting, clubs, organized crime, condominium associations and so forth. I hope to show via this comparative course of that legal methods are establishments of a very particular sort: they are obligatory planning organizations which have a moral intention and bear a privileged relation to different planning organizations.
Ideas of pure law are also excluded by Kelsen’s rejection of ‘metaphysics’ in a powerful sense, supposing something supra-human. All types of natural regulation principle subscribe to the Overlap Thesis, which asserts that there’s some sort of non-standard relation between legislation and morality.
Conversely, one may, although this may be unusual, settle for a natural regulation principle of law without holding a pure legislation theory of morality. Equally, to say that an unjust regulation is “not really regulation” might solely be to point out that it does not carry the identical ethical pressure or provide the identical reasons for action as laws per “higher regulation” (Bix 1996, 226).