An early critique of Kelsens pure theory of law: Slobodan Jovanović on the basic norm and primacy of international law

Abstract

The keystone of Kelsen s Pure Theory of Law is his doctrine of the basic norm. The basic norm is therefore the subject of Jovanović s critique of Kelsen s entire theory. According to Kelsen, the basic norm precedes the authority of a state, since it is positioned between the factual social force, which establishes the authority of the state, and the state. According to Jovanović, there is neither the law without a state, nor a state without the law; hence neither can Kelsenian legal norm, perceived as a norm prior to the state, be a positive legal norm, but an abstract, natural law norm. Jovanović discusses and criticizes Kelsen s solution to the problem of the relationship between national and international law, which depends on the establishment of the basic norm.