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39 Revus: J. Const. Theory & Phil. Law 7 (2019)

handle is hein.journals/revus39 and id is 1 raw text is: revus (2019) 39, 7-35 7 Claudina Orunesu* Jorge L. Rodrfguez** A revision of the theory of fundamental legal concepts Although coming from different traditions, Hans Kelsen and W. N. Hohfeld have of- fered two essential contributions to the clarification of fundamental legal concepts. After a brief review of their proposals, certain problematic aspects of their reconstructions will be analyzed in the light of categories developed by Eugenio Bulygin, in particular his criticism of the reductionist conceptions of norms, the non-prescriptive character of power-conferring rules, and the distinction between norms and norm-propositions. On this basis, and starting from the concept of legal obligation, an outline of an alternative reconstruction of the theory of fundamental legal concepts will be presented. IThe Span- ish original of this article was published in Revus (2018) 36: 81 -110. Keywords: fundamental legal concepts, sanction, legal obligation, norms, norm- propositions, power conferring norms, Kelsen (Hans), Hohfeld (W. N.) 1 INTRODUCTION Eugenio Bulygin had an important and well-deserved impact on legal phi- losophy over the last half century. He did so through a plurality of individual works as well as through his fruitful collaboration with Carlos Alchourr6n. His influence is reflected not only in the repeated references to his ideas in subjects within which he is well recognized, such as legal systems, logical analysis ap- plied to law, the problem of legal gaps, legal dynamics and legal positivism, but also in the possibilities his theoretical elaborations offer as a starting point to the analysis of various other topics, old and new, related to the law. In this paper, we use some of Bulygin's ideas to evaluate an issue that he did not comprehen- sively and systematically analyze: the theory of fundamental legal concepts.' The strategy that legal theory has generally followed for the study of the fun- damental legal concepts consists in offering a reconstruction of them by keep- corunesu@fibertel.com.ar I Professor of legal philosophy, Universidad Nacional de Mar del Plata (Argentina). jorgerodriguez64@yahoo.com I Professor of legal philosophy, Universidad Nacional de Mar del Plata (Argentina). We wish to express our deep gratitude to two anonymous referees who made very construc- tive suggestions and criticisms on a first manuscript of our paper. 1 Bulygin has, however, denounced the strong metaphysical assumptions in the traditional con- struction of many legal concepts by legal dogmatists and shown the viability of an alternative analysis in Bulygin 1961. journal for constitutional theory and philosophy of law P Vue (2019)39

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