The Concept of the Constitution by Austrian Legal Theorist (Hans Kelsen)
Volume 5 , Issue 2 , December 2017 , Pages 126-154
Authors
1 College of Humanities /Department of Law-Raparin University
10.17656/jlps.10113
Keywords
Abstract
This study, entitled 'the concept of the constitution by Austrian legal theorist (Hans Kelsen), is an attempt to illustrate the importance of theses and ideas presented by (Hans Kelsen) regarding the constitution and finding solution for issues related to legal thought including the legality of constitution. Kalsen has argued that constitution is a body of legal rules that stand at the top of the legal pyramid in the state. According to him constitution is a source of the legality of all other rules that descend from them. When confronted with the question of the source of the legal value of the constitution and binding force, Kelsen believes that the constitution can be established in accordance with the rules of the constitution of the former presence. Thus, the law derives its legality from this constitution, which repeals it, and since there is always a first constitution cannot go beyond and derive its validity and legality from any other constitution. Kelsen sought to find a basis for the constitution of the first constitution to the assumption of what he called the "basic norm", as it alone gives the legal status of the first constitution in a state, this is a source of the legality of all following constitutions and all acts of law established in accordance with its legal texts. The results of the research show that the solution is closer to reality in order to comprehend the basis of positive law or to justify the legality of the constitution, it requires a break from the closed legal system or a world that must be, and openness to the world of facts or a world is an object.
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