Marijan Pavcnik, Ljubljana: Die Frage der rechtlichen Grundnorm

(Pitamic’ Brief an Hans Kelsen)

The letter of Leonid Pitamic to Hans Kelsen in 1957 discusses the basic legal norm both thinkers were dealing with. It is to Pitamic’s credit that he was the first to methodologically unravel the problem by basing it on Mach’s cognitive economy. Everything that followed was “merely” a further development and justification in accordance with the normative purity of Kelsen’s theory of law. It was “merely” about suitably standardizing cognitive economy as the basic problem of legal cognition. – Pitamic’s further research led him to look for a common denominator of positive and natural law. In the letter he explicitly emphasizes that the legal order should correspond to the “essence of man” and continues: “Yet I should say that favouring the principle of order has its limits and violations of the norm or decisions comprising gross inhumanity cannot be considered legally binding. Both elements, i. e. ‘order’ and ‘humanity’, are already comprised in the nature, idea, and concept of law and need not be looked for in a special ‘natural law’”. Pitamic’s basic norm is “like a magnetic needle that, in spite of all its oscillations, tends to keep pointing in the same direction.” This direction is needed by anybody interested in law as a phenomenon of life.

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