András
Jakab: Probleme der Stufenbaulehre. Das
Scheitern des Ableitungsgedankens und die Aussichten der Reinen Rechtslehre
The Stufenbaulehre (SL) is a
central and founding element of the Pure Theory of Law (PTL). Most of the
criticism on SL targets the idea of the basic norm (Grundnorm), however
unjustified. This criticism stems from a misunderstanding of the presumptive
character of the basic norm and of the whole legal order. Others have
criticised the relativisation of the difference between individual and general
norms, Kelsen’s monism, and the determination of the validity of a norm
by a single other norm. This can be refuted as well – either because their
critique does not concern an essential part of SL (monism), or because SL can
be saved by making a small modification to it. However, there is one lethal
criticism. It concerns the founding thought of the whole SL, i.e. the
derivation of validity. In a law-making process, there is never a derivation of
validity: the logical result of a law-making process is only a norm saying
„The new norm ought to be valid.“ Whether the new norm is in fact
valid, is a question of efficacy in the realm of the Ought (sollen). This has
serious consequences: Without this derivation SL can not survive, and without
SL, PTL can not survive either. Some valuable parts of PTL might be used in
other legal theories, but these are nothing but transplanted organs from the
dead body of PTL whose heart – SL – can no longer keep the body
alive.