Chapter

Legal Norms and Legal Principles: Esser's Transformation Theory

Hans Kelsen

in General Theory of Norms

Published in print March 1991 | ISBN: 9780198252177
Published online March 2012 | e-ISBN: 9780191681363 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198252177.003.0028
Legal Norms and Legal Principles: Esser's Transformation Theory

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The influencing of law-creation by principles of morality, politics, and manners is sometimes consistent, sometimes less so. The moral principle of individual freedom, for example, is expressed in a positive legal system as freedom of contract. But a legal system which can be said to embody the principle of freedom of contract does not allow all agreements concluded between individuals to be valid. A promise of marriage is not binding, according to many positive legal systems; likewise contracts concerning immoral behaviour. The principles of morality, politics, and manners discussed in this chapter can be called ‘legal’ principles only in the sense that they influence the creation of legal norms by competent legal authorities. But they remain principles of morality, politics, and manners, and they must be clearly distinguished from the legal norms whose content agrees with them.

Keywords: legal norms; legal principles; individual freedom; freedom of contract; morality; legal authorities

Chapter.  3888 words. 

Subjects: Jurisprudence and Philosophy of Law

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