In his introductory section,
Christian Dahlman points to various “absurdities” or
“self-contradictions” generated by the basic norm. I adduce
arguments showing that these “absurdities” or
“self-contradictions” do not arise – not, at any rate, from
Dahlman’s premises. In his central section, Dahlman sets out three
purported problems and claims to resolve them by appeal to one or another of
the “three basic norms” that he adumbrates. None of these problems
is resolved by Dahlman. Specifically, I adduce arguments showing that the first
problem is a straw man of Dahlman’s own making, his resolution of the
second problem turns on his confusion of the fictitious basic norm in Kelsen’s
post-1960 period with the basic norm of ostensibly normative import in
Kelsen’s classical or neo-Kantian phase, and, finally, Dahlman’s
resolution of the third problem turns on his confusion of Kelsen’s basic
norm with H.L.A. Hart’s rule of recognition. I close with remarks on
Kelsen’s own conception of the juridico-theoretical problems he faced.