Notes

1 A good (and a brief) account on Kelsen’s legal theory in English might be found in the writings of Andreas Kalyvas (Kalyvas, 2006 and 2008, pp. 100-126).

2 Carl Schmitt claimed that Kelsen’s supposed derivation of the validity of the legal system from the Grundnorm was a “tautology of raw factuality” (“die Tautologie einer rohen Tatsachlichkeit”).

3 E.W. Bockenforde observes that Kelsen’s approach “formulates only the legitimacy question but a blank is left regarding the answer.” See Bockenforde, 1992a, p. 93.

4 On the differences between Hart’s rule of recognition and Kelsen’s basic norm see, among many others, Dyzenhaus, 2016, p. 9.

5 On Hart’s rejection of the moralizing myths accumulated around the law see Raz, 1995, p. 210. On positivism and the question of constitutional moral legitimacy see, generally, Fallon, 2005, and Barczentewicz, 2019, pp. 76-77.

6 Emer de Vattel, in glossing Christian Wolff’s ideas entailed in his Jus naturae, remarked: Populus ipse cum rege quacumque in republica leges fundamentales mutare non potest sine consensus unanimi totius nationis [The People itself with the king cannot change any basic law of the commonwealth but with the unanimous consent of the whole nation]. In mentioning the “commonwealth’s basic laws” such “unanimous consent,” however, seems to refer to the erection of a government rather than to the social contract’s conclusion. On this point see De Vega, 1995, p. 55.

7 See for instance de database CONSTITUTE (www.constituteproject.org).

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