Chapter

Positive and Negative Regulation of Human Behaviour by Law—The Closure of the Legal Order: Gaps in the Law

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/9780198252177.003.0031
Positive and Negative Regulation of Human Behaviour by Law—The Closure of the Legal Order: Gaps in the Law

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The normative legal functions were earlier said to be: commanding, permitting positively, and empowering a certain behaviour. But not the negative permitting of behaviour which is not the object of any legal norm because it is neither commanded nor forbidden by any legal norm. Nevertheless, negatively permitted behaviour can be considered to be legally regulated (not positively but negatively), for it is subject to legal regulation in the sense that it can become the object of a legal norm, and in particular that it can be legally commanded or forbidden. Even behaviour which is not determined by any legal norm is subject to the legal order — if not actually, at least potentially. Behaviour which is not the object of any legal norm, which is legally neither commanded nor forbidden, is free.

Keywords: legal order; human behaviour; legal norm; positive regulation; negative regulation; legal regulation

Chapter.  1113 words. 

Subjects: Jurisprudence and Philosophy of Law

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