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.

摘要

关于凯尔森基本规范学说的传统和多数派观点已经确认，凯尔森在 1960 年代初期已经彻底改变了其哲学地位，据称他开始将其描述为维欣格的好像哲学意义上的虚构。在本文中，我挑战这种观点并捍卫凯尔森从职业生涯开始到结束都将基本规范视为预设的说法。在我看来，凯尔森探讨了作为预设的基本规范与包括维兴格哲学在内的不同哲学取向之间的联系，但在纯粹法学的演进过程中，基本规范本质上仍然是一种预设或假设。