Kelsen Research Articles

‘Full Jurisdiction’ Under Article 6 ECHR: Hans Kelsen v. the Principle of Separation of Powers

This article examines the ‘full jurisdiction’ requirement under Article 6 European Convention on Human Rights (ECHR) and its implementation within European Court of Human Rights (ECtHR) case law. It first analyses the theoretical foundations for ‘full jurisdiction’ which implies, in principle, a substitutive review of the merits of administrative decisions. It then focuses on the ECtHR case law, highlighting its ambivalence and inconsistencies: while the Court generally requires a substitutive review in criminal cases and in cases involving complex technical assessments, it tends to accept a less exacting standard of review in civil cases, especially when administrative discretionary choices or policy determinations are at issue. This article suggests that the ambivalence and inconsistencies within ECtHR case law can be explained in terms of the principle of separation of powers, which still underpins most legal systems of signatory states to the ECHR. Art. 6 ECHR, fair trial, administrative procedures, full jurisdiction, principle of separation of powers.

A HERMENÊUTICA JURÍDICA EM HANS KELSEN E A CRIMINALIZAÇÃO DA HOMOFOBIA E DA TRANSFOBIA

A presente pesquisa tem como objeto de estudo o julgamento do Supremo Tribunal Federal sobre a criminalização da homofobia e da transfobia, sendo feita uma análise desse caso a partir da hermenêutica jurídica em Hans Kelsen. Para essa empreitada, o método é a pesquisa bibliográfica. O primeiro momento dessa pesquisa constitui-se de revisão de literatura em bases nacionais e internacionais sobre o tema. Além disso, também é contemplado o estudo de livros de Kelsen e de seus principais comentadores nacionais, em especial, Fábio Ulhoa Coelho e Tercio Sampaio Ferraz Junior. Já o outro momento da pesquisa bibliográfica se dá com a análise jurisprudencial, o estudo de caso, focalizando no referido julgamento em particular. Com a análise de todos esses materiais, é possível formular a pergunta que ensejou a investigação: há elementos da hermenêutica jurídica em Kelsen que expliquem o julgamento do Supremo Tribunal Federal acerca da criminalização da homofobia e da transfobia? Então, tomando por base os textos analisados, permite-se apontar, enquanto resultados obtidos, uma resposta positiva.

SCIENCE AND POLITICS

A translation of a paper by the Austrian philosopher and lawyer Hans Kelsen devoted to the conceptual understanding of the principle of objectivity in hu ma ni tarian knowledge is presented. The paper was published in The American Po li tical Science Review in 1951.

Totemism of the Modern State: On Hans Kelsen’s Attempt to Unmask Legal and Political Fictions and Contain Political Theology

AbstractThis paper argues that the writings of Hans Kelsen deserve more attention from those engaged in the debate on secularization and political theology. His lifelong struggle with various forms of legal‐political metaphysics is an identifiable thread in many of his writings. Kelsen’s concern with the theological‐political issues found in the theory of the state (Staatslehre) is far from being marginal. Kelsen claims that his theory aims at resolving the traditional dualism of law and state prevailing in the Staatslehre and contributes to an “uncompromising destruction of one of the most effective ideologies of legitimacy.” Kelsen maintains that the contents of this “ideology of legitimacy” derive from both political metaphysics and the deep‐seated ancient ways of thinking on nature and society. In order to illustrate this thesis, I propose calling this phenomenon “totemism of the modern state.”

STUFEN THEORY AS A BASIC ANALYSIS OF THE LEGAL STANDING OF THE MINISTERIAL REGULATION AND ITS RELATION TO THE EXECUTION OF THE LOCAL REGULATION

<em>Law is a set of regulations that contain a kind of unity that we understand through a system, as one form of this realization through Article 22A of the 1945 Constitution of the Republic of Indonesia. The legal force binds a regulation in accordance with the hierarchy as referred to in Article 7 of the Law Number 15 of 2019 on the Establishment of Laws and Regulations (hereinafter Law Number 15 of 2019), but in line with Law Number 15 of 2019, it does not recognize the legal standing of the Ministerial Regulation. This research focuses on analyzing and finding answers to questions about the legal standing and characteristics of Ministerial Regulations in the Hierarchy of Statutory Regulations in Indonesia. The research method with a normative juridical approach, prioritizes library research and its implementation in practice. Research specifications are descriptive. The research phase is carried out through library research, collecting secondary data in the form of primary, secondary, and field research materials to obtain primary data as a support. The theory put forward by Hans Kelsen through Stufen Theory and Adolf Merkl’s theory through (Das Doppelte Rechtsantlitz) as a basic analysis to study the legal standing and characteristics of the Ministerial Regulation. In line with the Law 9 of 2015 on the Local Government that Ministerial Regulations are above Provincial, Regency / City Regional Regulations, thus Ministerial Regulations may not conflict with Presidential Regulations and Government Regulations and provide guidelines for Provincial, District / City Regulations in determining the local regulations</em>

The Schmitelsen Court: The Question of Legitimacy

AbstractIn recent years, a new creature has emerged on the institutional landscape: The Schmitelsen Court. This court is the end-product of a combination of the positions presented by Hans Kelsen and Carl Schmitt in their famous debate over the institutional identity of the guardian of the constitution during the Weimar years. The Schmitelsen guardian is a court thus fulfilling Kelsen’s vision of the constitutional court as the guardian of the constitution. Nevertheless, it possesses the mission, the means to achieve it, and the source of legitimacy that Schmitt envisioned for the president as the guardian of the constitution. In this Article, I focus on the Schmitelsen Court’s source of legitimacy that differs greatly from the traditional source of judicial legitimacy that Kelsen envisioned for the guardian. Whereas Kelsen viewed legal expertise as the guardian’s source of legitimacy, Schmitt viewed public support as filling this role. After analyzing these two positions, I explain why it is vital for the Schmitelsen Court to harness public support as its source of legitimacy. I proceed by examining how the Schmitelsen Court model manifests itself in three case studies. In the US, Alexander Hamilton—in The Federalist No. 78—raised the notion of the guardian of the constitution long before Schmitt and Kelsen. He designated the judiciary as the guardian and ascribed its source of legitimacy to expertise. After describing how in recent decades the US Supreme Court adopted the Schmitelsen understanding of judicial legitimacy, I turn to examine the Israeli Supreme Court and the European Court of Human Rights. The relevance of these latter two courts stems not only from their adoption of the Schmitelsen Court’s understanding of judicial legitimacy, but also from the strong influence of the Weimar lessons on their evolution into Schmitelsen guardians.

ПОЛИТИКО-ПРАВОВЫЕ ДИСКУССИИ О СОЗДАНИИ АВСТРИИ КАК ФЕДЕРАТИВНОГО ГОСУДАРСТВА

Austrian federalism is closely associated with political historical events during the period 1918-1920. The union of Länder relied on the recognition of their autonomy, adoption of state constitu-tions, and the possibility of establishing the representative bodies. Many historians of law and lawyers maintain that a new Republic would have been established as a centralised unitary state. Programs of political parties and the first constitutional drafts reflected the ideas of a federal state in which states had extensive powers and expanded representation in the federation. Political parties had repeatedly voiced their support for the Swiss federal model. Hans Kelsen’s constitutional drafts to be developed on behalf of the Secretary of State Karl Renner provided a solid foundation aimed to introduce federal constitutional principles and create a parliamentary republic. Constitution, system of federal institutions, as well as forms of government were widely discussed at the Länder conferences in Salzburg and Linz. Michael Mayr, Secretary of State, made a significant progress in overcoming disagreements. Mayr’s draft constitution focused primarily on achieving consensus with conflicting political parties. After the collapse of the coalition on June 10, 1920, political parties prepared and presented their constitutional drafts covering a broad range of issues: federal constitution, the Land par-liaments, and powers of states. From July 11 to September 23 1920 constitutional issues had been discussed by special subcommittee of the Constitutional National Constitutional Assembly composed of representa-tives of political parties, the state chancellery and Hans Kelsen as its scientific advisor. Delimitation of powers between the federation and the states, composition of the Federal Council, supremacy of federal law, indirect federal government were the most important issues of constitutional debates. Principle of equity and equality between the federation and the states was the key to overcoming most disagreements. Austria’s Federal Constitutional Law was passed on October 1, 1920. Despite the fact that the states did not participate in debates of the Constitutional National Assembly, they sent their representatives to the Federal Council in November 1920. However, the western Länder expressed their objections to the procedure for the adoption of the federal constitution. Efforts of the main social forces, their willingness to compromise resulted into a unique constitutional draft of the First Republic. The 1920 Constitution was a compromise solution between a centralized unitary state and a federation.

Rupert Schreibers Deskriptionsthese

This paper deals with the ‚description-thesis‘ (R. Schreiber 1962) according to which normative or prescriptive legal statements are reducible to, or translatable into, descriptive propositions. The arguments Schreiber produced in support of his thesis are briefly presented, followed by a discussion of the thesis against the background of Hume’s law and G. E. Moore’s open-question argument. In order to broaden the perspective, some other philosophical views are examined; emphasis is placed on how the is-ought relation was conceived, in conflicting ways, by Hans Kelsen and Friedrich Müller respectively, as compared to the current state of discussion, and what are, according to Ernst Tugendhat and Christoph Möllers, the constituents of (social) norms. As a result, the paper suggests that the description-thesis can not be maintained in its entirety. A special version is presented which seems to respond to the criticism discussed while implying at least part of what Schreiber’s original version claimed.

Victorious Power and the Peoples’ Right to Self-Determination

Victorious Power and the Peoples’ Right to Self-Determination

Hans Kelsen and the (failed) political unification of the German people between the two world wars

Hans Kelsen and the (failed) political unification of the German people between the two world wars

Opening the Pandora’s Box: Kelsen and the Communist Theory of Law

This paper examines Hans Kelsen’s Communist Theory of Law in the context of his general critique of natural law theories. Kelsen argues that since there is no such thing as objectively determined natural law, a theory that attempts to use it to establish constraints on positive law is at risk of automatically justifying the latter. Kelsen deploys this ‘Pandora’s Box Objection’ in his characterization of the Communist theory of law as the ‘handmaiden’ of the Soviet government that conserved, rather than challenged, oppressive policies. The Objection is limited in scope. Firstly, it applies only to ‘forward-looking’ Communist theories of law that justify transitional socialist legal arrangements rather than seek to abolish the legal form as a whole. Secondly, it does not eliminate the Rule of Law constraints that are independent from natural law fetters - hence the state does not have a ‘blank cheque’ to introduce any positive law.

Constitutional Borrowing from Austria? Influences of the Austrian Federal Constitutional Law on Foreign Constitutions

100 years after the enactment of the B-VG (Federal Constitutional Law) the paper examines whether it has had direct or indirect impact on foreign constitutions. Despite the excellent international reputation of Hans Kelsen, the preconditions of becoming a prominent “model constitution” were not particularly favourable. The reasons for this can partly be found in the B-VG itself, but also in the external environment in which it was embedded. As an exception, the B-VG exerted considerable influence on foreign constitutions under one particular aspect, namely the model of a Constitutional Court. In this context, however, a differentiated perspective is required in order to be allowed to speak of an “Austrian” model – and not just of a general migrating constitutional idea: an “Austrian” model may only claim relevance if it is seen as the combination of a specialized constitutional court and two essential functions, namely judicial review and individual rights protection. In contrast, the B-VG has only modestly influenced foreign constitutions under other aspects. Mostly, such influence can be documented with regard to the Constitution of Liechtenstein, which was enacted in 1921, but only in minor cases regarding other constitutions.

How Different are Alexy and Kelsen? – On the Meaning of the Choice of the Perspectives for the Legal Science

The non-positivist Robert Alexy recognizes that the legal positivism is principally correct from the observer’s perspective. The legal positivist Hans Kelsen takes this perspective. They agree on this point. Their minds separate, however, when they are asked about the meaning of the participant’s perspective for the legal science. While Kelsen denies it clearly, Alexy takes the participant’s perspective to be necessary for the recognition of law, because the claim to correctness which law always lays can be understood only with this perspective. Kelsen tries to grasp the normativity of law with the famous “basic norm”, but he admits at the same time that one need not necessarily presuppose it. Horst Dreier realizes that Kelsen’s basic norm implies that the validity of law is dependent on the “existentialistic” decisions of individuals. With this in mind, Kelsen’s legal theory draws closer to the participant’s perspective of Alexy. I do not think, however, that Dreier correctly explains the role of the basic norm in the legal science. I resort to Joseph Raz, who introduces “a hypothetical point of view” for the scientific observation of law. Then we face the last question: if the legal science may be satisfied with such a hypothetical perspective or it needs the participant’s perspective, as <italic>Alexy</italic> claims. He claims so because he recognizes the moral value of the positive law. <italic>Kelsen</italic> does not think so, therefore he cannot tolerate the legal science participating in the legal practice. I find <italic>Alexy</italic> more persuasive. The legal system of modern states is worth supporting. His directly moral legitimation of law should be corrected, however. I explain this point with the help of the legal philosophy of <italic>Jürgen Habermas</italic>.

Czesława Martyniaka krytyka normatywizmu Hansa Kelsena

The article aims to present a critique of Hans Kelsen’s pure theory of law by Czesław Martyniak and to present a “positive’ solution. Martyniak reduced his criticism of Kelsen’s normativism to three issues: 1) the uniformity of its philosophical foundations, 2) the force of applicable law, and 3) natural law. Martyniak’s critique of Kelsen’s concept of law shows two extremely different attitudes regarding the separation of the sphere of being and duty in the field of law made by I. Kant. Kelsen is an extreme supporter of the separation of Sein and Sollen, while Martyniak, on the contrary, assumes the coexistence and connection of these spheres. According to Martyniak, a mutual separation of the spheres of being and duty results with many absurd consequences on the basis of law and its theory. Martyniak’s critique of normativism remains close to Thomistic doctrine and is clearly inspired by the thoughts of Thomas Aquinas. However, it should be considered as a creative adaptation of Thomas ideas. It is debatable to what extent Czesław Martyniak’s criticism of Kelsen’s normativism is only of a historical value or could be considered timeless. It probably depends on the importance and “eternity” of the problems we take under our consideration, moreover, whether one is capable to work out their original solutions.

Constitutional Courts and Representative Democracy – a Kelsenian Perspective

In the presented article we develop the thesis that constitutional courts may be treated as one of the key elements guaranteeing the proper functioning of representative democracy if they secure the democratic “chain of delegation”. Following the theory of Hans Kelsen, we employ a normative concept giving the answer to how a constitutional court should act to fulfil such a role. According to Kelsen’s perspective, the main threat to representative democracy is the “alternative legislative procedure”, a non-constitutional form of legislation based solely on the political will and in consequence deconstructing the constitutional chain of delegation. The guarantee of constitutionality means the restoration of an equal representation in the legislative procedure based on the majorityminority rule. As the guardian of the democratic legislative procedure, the constitutional court should be a ground for the “virtual representation” of all the parties to a democratic dispute. In result it prevents the transformation of representative democracy into majority democracy.

A revision of the theory of fundamental legal concepts

Although they come from different traditions, Hans Kelsen and W. N. Hohfeld have offered 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. | The Spanish original of this article was published in Revus (2018) 36.

Revolución, violencia y Derecho: Hans Kelsen y el surgimiento de la Constitución Federal Brasileña de 1934

Este artículo pretende discutir las relaciones entre derecho, violencia y revolución en Kelsen a partir de la premisa de que el indicio característico de la experiencia jurídica es su efectividad, o sea, el hecho de que el derecho logre imponerse en una sociedad. En este sentido, el derecho pasa a ser entendido como experiencia de monopolización de la violencia. Sobre esta base se realiza una lectura de la Teoría Pura del Derecho de Hans Kelsen como una teoría de la violencia. Para confirmar esta tesis, francamente minoritaria dentro de los estudios kelsenianos, se analiza el Dictamen que Kelsen ofreció a la Asamblea Constituyente brasileña en 1933, en el contexto de la Revolución de 1930 que llevó a Getúlio Vargas al poder. Además de presentar este documento (en el original alemán y traducido al castellano), hasta hoy desconocido en castellano y otras lenguas, el trabajo lo analiza pormenorizadamente con el objetivo de demostrar la tesis central de lo que caracteriza la teoría jurídica kelseniana, según la cual es imposible separar el derecho de la violencia, lo que se vuelve especialmente claro en momentos revolucionarios.

TINJAUAN TENTANG KEWAJIBAN PELAPORAN TRANSAKSI KEUANGAN OLEH ADVOKAT DALAM KETENTUAN UNDANG-UNDANG NO. 18 TAHUN 2003 TENTANG ADVOKAT YANG TIDAK SEJALAN DENGAN PERATURAN PEMERINTAH NOMOR 43 TAHUN 2015 TENTANG PIHAK PELAPOR DALAM PEMBERANTASAN DAN PENCEGAHAN TINDAK PIDANA PENCUCIAN UANG

The legal norms of any country are always multi-layered, where the norms below apply, are based on and come from higher norms, higher norms apply, are based and are sourced from even higher norms, up to a norm the highest is called the Basic Norm. Since the birth Republic of Indonesia with proclamation independence, as well as the adoption from the 1945 Constitution as the constitution the Indonesian State, the proof legal norm system the Republic of Indonesia, If we compare it with the theory of the level of legal norms (Stufen Theory) from Hans Kelsen and the theory of the level of legal norms, that Article 3 letter a of Government Regulation No. 43 of 2015 adheres to the Advocate Law No. 18 of 2003. Article 3 letter a Government Regulation reads "Advocates are required to report financial transactions to prevent money laundering, Advocates must report data or where the money they receive from their clients is" to ask the client about it does not feel it appropriate, because it is a secret from his client, in accordance with what is written in Article 19 which reads "Advocates have the right and obligation to keep everything confidential from their clients, including protection of files and documents against confiscation and protection against wiretapping", and Article 21 which reads "Advocates are entitled to an Honorarium for legal services that have been provided by their clients, based on the agreement of both parties".

Emancipatory Of Legal Transendency In Indonesia: Study Of Moral Aspects In The Making Of Laws And Regulations In Indonesia

ABSTRACT Objectives: This paper aims to answer the question of how the relationship between law and moralism, as well as how to internalize moral principles in making laws and regulations in Indonesia. Methodology: This study used a philosophical approach that aimed to explore the relationship between law and morals from the perspective of John Austin, Kelsen, and H. L. A Hart. It also used the transcendental perspectives in exploring the importance of internalizing moral principles in making laws and regulations in Indonesia. The research method in the article used descriptive normative research methods, with interpretative data processing techniques regarding the importance of moral aspects in making laws and regulations in Indonesia. Findings: The dominance of the philosophy of positivism has broad implications. The closure of the law to morality raised by adherents of legalism, legal positivism, or reinerechtslehre does not only raise injustice everywhere but also appear with a face of totalitarian or repressive law. Law and moral relations, according to John Austin (1790-1859), are diametrically separated and tend to favor the law (the law negates morals), while Hans Kelsen and Austin place religious and moral inferiority while favoring positive law. According to Kelsen, the law deals with the form (formal), not the content (material); then, Hart tries to offer the principle of morality as a minimum legal requirement in which the pattern of the relationship is cooperative or independent dialogue. Whereas in the transcendent perspective, law and morals are in a dialogue-integrative relationship. The legislators should have spiritual intelligence; that is, they do not want to be bound and limited by existing standards but want to go beyond and transcend the existing situations (transcendental). With spirituality, the legislators, who are in accordance with the principle, can produce laws that show the emancipatory of legal transcendency. The laws do not only humanize humans but are also oriented to moral values that originate from God. Benefit: The benefit of this paper is to be the basis for guarding moral values in making the Law, starting from the preparation and initiative for the submission of the draft law, discussion of the draft law, and approval of the draft law. Originality/novelty: Internalization of moral principles in law can produce laws that can make people happy and answer the problems of human life. At least three elements are fulfilled, namely justice, efficacy, and legal certainty. Keywords: transcendency, morals, the formation of laws

Lawful out of (Un)lawful: Mythology of the Constitutional Revolution

Applying to the social active (Hans Kelsen) and social psychological (Georg Jellinek, Alf Ross) foundations of revolutionary change of the Constitution legitimacy allows to state, that main legal characteristics of the act of commission of foundational power (lawfulness and validity) are socially determined and bear concrete social character. Bearing in mind aforementioned, such characteristics are relative and relational. Relationality of the foundational act finds itself, first of all in its’ connection with certain distinct system of law and distinct legal consciousness, within limits of which is determined its’ lawfulness and validity. Transformation of the social historical conditions may lead reestimation of the legal meaning of the act of the state body organ. Secondly, relationality of the act lies in correlation of the characteristics of the act with the distinct types of law understandings as the distinct strategies of legal legitimation. Relativity of the act touches upon historical changeability of the legal estimation of the act, namely, dynamics of such estimation under the revolutionary conditions. In the context of political and legal transit the positivistic sociology of law becomes a strategy for the retroactive legitimization of political decisions and actions. Sociological positivism is as a strategy of “ascertaining” socio-empirical legitimation, which can be used for both revolutionary and conservative purposes. Jusnaturalistic argumentation is also politically ambivalent. It allows us to give meaningful legitimation to new constituent acts and to delegitimate the constituent values of previous acts. The metaphysical nature of the evaluation criteria allows the use of jusnaturalism both prospectively and retrospectively. Legal dogmatics is a promising and conservative strategy for the formal legitimization of acts of ordinary rule-making and the delegitimate of unconstitutional constituent acts.