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On the continuity of the doctrine of the basic norm in Kelsen's Pure Theory of Law
Jurisprudence  (IF),  Pub Date : 2021-02-04, DOI: 10.1080/20403313.2020.1866843
Alexandre Travessoni Gomes Trivisonno

ABSTRACT

The traditional and majoritarian view about Kelsen's doctrine of the basic norm has affirmed that Kelsen had drastically changed its philosophical status in the early 1960s, when he allegedly began to characterise it as a fiction in the sense of Vaihinger's philosophy of the as if. In the present paper, I challenge this view and defend the claim that from the beginning until the end of his professional career, Kelsen conceived the basic norm as a presupposition. In my view, Kelsen explored the connection between the basic norm as a presupposition and different philosophical orientations, including Vaihinger's philosophy, but the basic norm remained, in the course of the evolution of the Pure Theory of Law, essentially a presupposition or hypothesis.