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Norm and Obligation as the Basis for Legal Being in Hans Kelsen's Doctrine

Yu.V. Hotsuliak

The article analyses Hans Kelsen's legal doctrine namely its ontological component. The question of the relation of law as obligation and being as fact is considered. From Kelsen's doctrine the author concludes that the search for the legal is legitimate both in society and in nature because there is co-existence everywhere. The author concludes from Kelsen's doctrine that the search for the legal is legitimate both in society and in nature, since there is co-existence everywhere. Legal being is special because it does not come directly from the real world but from the world of relationships and their characteristics. Analyzes the provision according to which legal being is the imposition of legal content on phenomena and processes the actual existence and law is not the same, fact even without law remains a fact but not any fact is legal.

The article substantiates Kelsen's attempt to bring to the brackets all that was considered to be a constituent of the legal and to allocate the pure basis of law it is the obligation. The will of the person compels the existence of the person to the legal content. The law arises when there is a certain desire to act in this way and not otherwise. Legal being is the being of ideas that must be related to actual being. According to the author, legal being is the deployment of legal ideas (attributes) in the social space which defines law as a component of being. Legal being is an inherent task that solves the problem of the uncertain flow of actual being. The article concludes that legal reality is the nature of the relation between norm and fact legal truth and legal reality. If the hierarchy is an unconditional attribute of legal existence then the search for the higher principle must lead to a certain absolute "one". Kelsen understands the main problem of positivism – the state namely the dependence of the right on the will of the sovereign and therefore understands the need to exercise a higher superpower regulatory power. The article identifies the positive and negative sides of the comparison of the legal idea of proper and factual existence, which is one of the key positions of Kelsen's law ontology.

 

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