Legal Power and Power-conferring Norm
Date Issued
2009
Date
2009
Author(s)
Lin, Chung-He
Abstract
Power and norm is an significant pair of concepts in both political philosophy and legal theory. In the realm of legal theory, this pair of concepts is mainly represented as the query of the concept of legal power, power-conferring norm, and their correlation from the perspective of the legal.n Anglophone areas, Hofheld is the first one who dealt with the conceptual study of the concept of legal power, but it is not until Bentham that man can get comparatively comprehensive picture and insight of the concept of legal power. Besides, Kelsen, who stands firm in the stance of pure theory of law, also offers a excellent theoretical description of it; Spaak, instead, offers a rather complete and thorough discussion as to the explication of it. This thesis, therefore, from investigating the theoretical conceptions of legal power suggested by the above three scholars, tries to preliminarily define the concept of legal power from both outside and inside aspects.his thesis, however, insists that a complete understanding of the concept of legal power cannot be without the reference to the concept of power-conferring norm, even if a legal power does not necessarily come from a norm. In order to explain the nature of power-conferring norm, it first investigates the issue of what normative function means, and goes on to the study of the different theoretical understandings and evaluation of the nature and status of power-conferring norm. On the basis of the aforementioned investigation, this thesis claims that both in the perspective of its function or meaning, it seems power-conferring norm enjoys a independent status from duty-imposing norm, and cannot even more be reduced to permissive norm of the sense of tolerance. Contrarily, it suggests that it probable and desirable for us to find a proper place for power-conferring norm in the theory of legal system.he main purpose of this thesis is to show: on the one hand, the nature of legal power is a kind of technique constructed by power-conferring norms to reduce the complexity of legal decision or the realization of law; on the other hand, the nature of power-conferring norm is, notwithstanding, irreducible to that of duty-imposing one, not to mention to that of permissive one of tolerance, and is susceptible of substantial values and interests. It seems, I think, to remind us that, considering concerns of the obligation to obey the law, power-conferring norm is not only independent of duty-imposing one as to its nature, but also seems to be prior to it in respect of its significance.
Subjects
legal power
legal competence
norm
power-conferring norm
competence norm
duty-imposing norm
Type
thesis
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