2.11【違憲概念之形成】－法秩序階層說 Hans Kelsen，General Theory of Law and State： D.The Static And The Dynamic Concept of Law If one looks upon the legal order from the dynamic point of view，as it has been expounded here，it seems possible to define the concept of law in a way quite different from that in whichwe have tried to define it in this theory。It seems especially possible to ignore the element of coercion in defining the concept of law。 It is fact that the legislator can enact commandments without considering it necessary to attach a criminal or civil sanction to their violation。If such norms are also called legal norms，it is because they were created by an authority which，according to the constitution，is competent to create law。They are law because they issue from a law-creating authority。According to this concept，law is anything that has come about in the way the constitution prescribes for the creation of law。This dynamic concept differs from the concept of law defined as a coereive norm。According to the dynamic concept，law is something created by a certain process，and everything created in this way is law。This dynamic concept furnished an answer only to the question whether or not and why a certain norm belings to a system of valid legal norms，forms a part of a certain legal order。And the answer is，a norm belongs to a certain legal order if it is created in accordance with a procedure prescribed by the constitution fundamental to the legal order。 Hans Kelsen，translated by Anderson Wedbery，A General Theory of Law and State（New York：Russel &Russel 1961），pp.122
Posted on: Wed, 13 Nov 2013 13:45:49 +0000