Staatenloses Recht: Kelsens Konzeption und ihre Grenzen

Abstract

Hans Kelsen’s claim that the state and the law are ”the same” is surrounded by a somewhat mystical air. Yet, the so-called ”identity thesis” loses much of its mystical aura when it is seen as an attempt to recast the state, as a social fact, in deontological terms. Thus understood, it gives rise to viewing the state as a mere product of legal acts and implicates the rejection of the idea that some further social fact is needed in order to account for the existence of the state. Accordingly, all law is essentially, and principally, law without a state.