Linkage Norms: A Comparative Analysis

in any case not affected by this small aberration at the edges. This short description also included two theoretical concepts that can be used to complete Kelsen’s account, ‘linkage norms’ and the ‘dominant legal discourse’. Linkage norms are those that purport to establish the unity or disunity with legal systems that are as a matter of fact separate. They are, however, not necessarily bi-directional, but can also fail, so that the government in exile purports to legitimize the Polish government but fails in the perspective of the other. The dominant legal discourse that reflects these practices is therefore not unified, but is more like a network that has some centre points, usually the major states, but also some subdued discourses that

Instead of granting the scholarly community a special role, he develops a very restrictive reading and writes that principles are ‘norms which become international law applicable before the international court of justice, because Article 38(1)(c) authorizes the international court of justice to apply them.’ Still, one might argue that principles must have a normative quality before they are applied, as otherwise, the provision would empower the court to apply whatever it considers to be convenient. A traditional solution would be to postulate a specific means of constructive comparative interpretation that enables the scholarly community to recognize new norms. The problem of this solution from a Kelsenian perspective is that these would be norms of a different kind, namely norms that have their ultimate foundation not in the will of some person or group of persons, but in some form of practical reason on its own. Kelsen’s solution on the other hand reduces the principles to the lex arbitrari, thus to norms that are applicable only to the case in question, similar to norms that are applied by arbitration

However, one might turn the table and regard these philosophical underpinnings not as a strength but as a weakness of Kelsen’s account. Far from serving as an ideology critique, one might argue, it is itself an expression of a mystifying perspective, namely a blind faith in ‘pure’ science. As a theoretical alternative, one could point out that a more empirically minded approach allows one to analyse law in terms of exclusionary albeit prima facie reasons for action. Once the common sense perspective on practical reasons is established the only remaining question is how the relation between different kinds of reason is to be seen, and whether the meaning of normative language in law and morality differs (as Hart held) or whether theory of law can be seen as a part of a theory of practical reasoning in general (as Raz proposes). Taking up this lead Nicole Roughan holds that normativity in general entails justifying reasons, which means for the case of law that it needs to be morally valuable qua legally valid rule. She then argues that sources can generate valid norms and thus contribute towards the normativity of law. However, full normativity requires in addition that the norms emerging from the sources of law must support a deep justification for having international law. In the case