The Role of the Judge in Establishing Legal Rules with an Emphasis on Hans Kelsen's Ontological Analysis of Legal Rules

One of the founding elements of a legal system is a legal rule or legal norm; establishing a legal rule is one of the pivotal issues of legal theory. The dynamics of a legal system depend on the dynamics of creating legal rules. According to Kelsen’s theory in reconstruction of the legal system, judges have a fundamental role in establishing and applying legal rules. Legal rules have five essential characteristics: validity, existence, binding force, acceptance and application. These characteristics affect judge's decisions like legal rules. The legitimacy of the judge's decisions, could be found in Kelsen's hierarchical structure model. In terms of the legitimacy, there is no difference between the general norms and specific norms (judge's decisions). Based on the theory of open texture, where the general legal rule is indeterminate, judge's decision is terminative as a legal norm.