By Joseph Raz
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Extra resources for The Concept of a Legal System: An Introduction to the Theory of the Legal System, 2nd Revised edition
1 At times Kelsen expresses himself in a way which is liable to create the impression that the basic norm is created by being presupposed. He says, for example, that it 'exists in the juristic consciousness' and that 'it is not . . valid because it is created in a certain way by a legal act but it is valid because it is presupposed to be valid'. 2 But this impression is mistaken. Kelsen specifically denies that basic norms are created by being presupposed. 3 Two points should be briefly mentioned here: First, presupposing the basic norm of a legal system is not a condition for the existence of that system.
Similarly, when he says that the sovereign in a federal state is 'the several united governments as forming one aggregate body' 2 he knows that as a rule they do not co-operate in the legislation of the same laws. If this is the case, Austin can know that several supreme legislators are parts of one sovereign only because he has previously established on some other grounds that their laws are part of one legal system. The unity of sovereignty being abandoned, finding out the supreme legislator of a law is not enough to establish to which legal system it belongs.
456-7, where he refers to the intention 'to further or affect the course of the practice in question'. -62occurrence of a certain event or the lapse of a certain period of time. These are the ordinary ways of terminating the existence of norms. e. a custom which repeals norms). By claiming that negative custom is always and of necessity a way in which laws are terminated Kelsen abandons the Austinian position that the efficacy of a law is relevant to its validity only in so far as it affects the efficacy of the legal system as a whole.
The Concept of a Legal System: An Introduction to the Theory of the Legal System, 2nd Revised edition by Joseph Raz