Abstract

This article proposes an interpretation of the status of the Grundnorm in Hans Kelsen’s legal theory which addresses the broader philosophical problem of the ultimate foundation of normativity. It begins by reviewing the main objections that have been raised against Kelsen’s theory, pointing out that most of these can be met by a ‘transcendental’ interpretation of the Grundnorm as a condition of possibility for legal cognition. It then argues that in order to solve the problem of the ultimate foundation for legal validity it is also necessary to read the Grundnorm in light of the parallel category of ‘nomo-dynamicity’, which Kelsen introduced in all his legal writings beginning with the Pure Theory of Law of 1933. This yields a conception of legal validity as an ‘essentially temporal’ category, from the point of view of which the problem of ultimate foundations cannot emerge because the beginning is by definition not situated conceptually within time. The broader conclusion is therefore that overcoming the problem of the ultimate foundation of normativity requires abandoning the theologico-political assumption that valid norms are posited through a sovereign gesture analogous to that through which God is supposed to have created the universe ex nihilo. Construing normativity as ‘essentially temporal’ implies that the search for ultimate foundations must run into a category that is entirely foreign to political theology but well known to phenomenology: that of an ‘always-already’.