Kelsen's Pure Research Articles

The Influence of Early analytic Philosophy on Kelsen's Pure Theory

لقد أحدث الفقيه النمساوي هانس كلسن انعطافًا جوهريًا في مذهب القانون الوضعي، تمثلَ في عنايتهِ الخاصة بالمنطق القانوني تحريرًا وتأصيلًا، إضافةً إلى اهتمامه بالتحليل اللغوي للمفاهيم القانونية، وهذا التميز في مذهب كلسن قد يُعزز من فرضيةِ هذه الدراسة، وهي تأثر الفقيه كلسن بالتحول الذي شهده القرن العشرين في علم المنطق من المنطق التقليدي إلى المنطق الرياضي، بقيادةِ فلاسفةِ المدرسة التحليلية. ومن هذا المنطلق يدرس هذا المقال الأصول التاريخية والفلسفية لمذهب الفقيه كلسن، في ضوءِ فرضيةِ تأثره بالفلسفة التحليلية المبكرة في موقفهم من المنطق واللغة، ويستند هذا البحث في طرح هذه الفرضية إلى عددٍ من أوجه التشابه في نظرية كلسن في القانون الخالص مع مسلك الفلسفة التحليلية المبكرة. ويتمثلُ الدافع في كتابةِ هذا البحث في قلةِ اهتمام الفقه العربي بالفقيه كلسن، مما استدعى تسليط الضوء عليه؛ بوصفه واحدًا من أهم الفلاسفة المؤثرين في مدرسة الفقه الوضعي الحديثة، كما أن هذ البحث قد يكون مدخلًا مُهمًا للمقارنةِ بين أصول الفقه الإسلامي والفقه الغربي. وقُسِّمَ البحث إلى ثلاثة مباحث؛ أولها: كان الحديث عن القانون بوصفه نظامًا معرفيًّا، أي بوصفه نظامًا يتألفُ من مجموعةٍ من الحقائق التي تجمعها رابطة منطقية ضرورية، ثم كان الحديث في المبحث الثاني عن الفلسفة التحليلية المبكرة وأبرز المشكلات الفلسفية التي حظيت بعنايتها، وتناول المبحث الثالث الآثار المحتملة للفلسفة التحليلية المبكرة لدى كلسن. وقد اتّبع البحث في دراسة الفرضية المنهج التحليلي الاستقرائي. وقد توصل البحثُ إلى أن كلسن في صياغته للنظرية المحضة في القانون قد يكون وقعَ تحت تأثيرِ الفلسفة التحليلية المبكرة؛ فجاءت نظريته متشابهةً لمسلكهم في الغاية والمنهج؛ حيث اشترك كلسن معهم في اتّباع منهجٍ صارمٍ في المنطق لتمييز المنطق القانوني معرفيًّا بشكل يحقق له ذاتيته من داخلهِ دون حاجةٍ إلى تبريره عبر نظم معرفية أخرى، كما يشترك كلسن مع الفلسفة التحليلية في مواجهة ما يُسمى بالنزعة النفسية لدى فقهاء القانون، وهي النزعة نفسها التي واجهها فريجه عند الفلاسفة، كما سعى كلسن أيضًا إلى مقاربة المنطق القانوني ومنطق الرتبة الأولى الذي يعتمد بشكل أساسي على الفئات؛ حيث إنَّ حقائق القانون عند كلسن تقع ضمن هرمية منطقية خاصة تنتهي إلى ما يُسمى بالقاعدة القانونية الأساسية، كما يقوم نظام كلسن على الالتزام المعرفي بوجودِ ما يُسمى بالكيانات المجردة، وهي السنن القانونية، وهي كيانات يمكن مقابلاتها بالكيانات الرياضية لدى فلاسفة المدرسة التحليلية. ويميل البحث إلى القول بعدمِ وجودِ تأثيرٍ مباشرٍ للفلسفة التحليلية على كلسن، وأن التشابه الظاهر بين كلسن والفلسفة التحليلية يُعزَى إلى الثقافة الفلسفية السائدة في القرن العشرين؛ إذ قد يكون كلسن قد وقع تحت تأثير الثقافة العلمية السائدة في عصره التي انعكست بشكل مباشر على نوع ِالمشكلات المطروحة لديه. كما توصلَ الباحثُ إلى أن لكلسن أثرٌ واضحٌ في الفقهاء الوضعيين من بعده؛ إذ أصبح التحليل المنطقي اللغوي سائدًا بين فلاسفة القانون الوضعي إلى يومنا هذا.

Beyond the Grundnorm:

This contribution aims to add arguments to the hypothesis that the basic norm of Hans Kelsen's Pure Theory of Law is inapplicable as the sole foundation of the legitimacy of international law. Legitimacy is understood here as the property of the norm to attract international actors (Subjects of International Law) toward fulfilling the normative command. The basic norm of Hans Kelsen's Pure Theory of Law can be seen as a static element of the legitimacy of norms of international law. The fragmentation and interdependence between norms of international law can be seen as dynamic legitimacy elements. These arguments make up a theoretical set that seeks to explain why and how subjects of international law obey rules of law at the international level. The methodology of this contribution consists of qualitative theoretical research using primary sources referring to the issue of legitimacy in international law.

Understanding John Austin's Legal Positivism Theory and Hans Kelsen's Pure Legal Theory

John Austin and Hans Kelsen are widely recognized as influential legal experts. Their theories and thoughts about law are still a reference for jurists around the world. John Austin's Legal Positivism Theory offers a scientific and measurable legal paradigm when most existing legal products do not have certainty and are not measurable with certainty. Meanwhile, Hans Kelsen's Pure Law theory was also born as a form of response to various legal products at that time which could not be separated from various social, political, and cultural interests. So that law as a product of the state does not have authoritative legal certainty. The thoughts of both have sparked various responses and many among legal experts around the world. Therefore this article will further explore the two thoughts of these two figures in the hope of helping to show that Pure Law Theory and positive law theory are still relevant to contemporary legal theory.

The Federal Constitution of Malaysia: A Kelsenian Perspective

AbstractThis article examines the Federal Constitution of Malaysia through the lens of Hans Kelsen's Pure Theory of Law. It first demonstrates the utility of the Grundnorm in explaining the supremacy of the Federal Constitution within the Malaysian legal system. In particular, this article establishes that despite Malaysia's colonial past, the Federal Constitution is the Kelsenian ‘historically first constitution’ of the present Malaysian legal system because of the Kelsenian ‘revolution’ that had occurred when the Federation of Malaya attained independence from the British in 1957, as well as the absence of a Kelsenian ‘revolution’ during the formation of Malaysia in 1963. The Grundnorm of the Malaysian legal system can thus be expressed as ‘one ought to obey the prescriptions of the Federal Constitution’. However, this article also argues, using the example of the basic structure doctrine controversy in Malaysia, that while the Pure Theory succeeds in elucidating a measure of legal validity for legal norms, it fails to provide any helpful insight when a constitutional dispute relates to the content of a norm rather than the interaction between hierarchically distinct norms.

Philosophy, Law, and Permission

Abstract: The Idea of a Pure Theory of Law presents a new jurisprudential theory based on Hans Kelsen's Pure Theory of Law. This article responds to some criticisms of that book, in particular those that question the role that permissions can play in our thinking about he law. The article begins with a brief restatement of the basic ideas behind my theory of permission and then tackles the most salient clusters of criticism. It ends with a discussion of some more general points that have been made about my book.

On the continuity of the doctrine of the basic norm in Kelsen's Pure Theory of Law

ABSTRACT The traditional and majoritarian view about Kelsen's doctrine of the basic norm has affirmed that Kelsen had drastically changed its philosophical status in the early 1960s, when he allegedly began to characterise it as a fiction in the sense of Vaihinger's philosophy of the as if. In the present paper, I challenge this view and defend the claim that from the beginning until the end of his professional career, Kelsen conceived the basic norm as a presupposition. In my view, Kelsen explored the connection between the basic norm as a presupposition and different philosophical orientations, including Vaihinger's philosophy, but the basic norm remained, in the course of the evolution of the Pure Theory of Law, essentially a presupposition or hypothesis.

Is the Law about Truth or Is It about Governance? Assessing Kelsen's Pure Theory of Law in Pakistan's Political Framework and Legislative History

Is the Law about Truth or Is It about Governance? Assessing Kelsen's Pure Theory of Law in Pakistan's Political Framework and Legislative History

O mestu diskrecione ocene u Kelzenovoj čistoj teoriji prava

O mestu diskrecione ocene u Kelzenovoj čistoj teoriji prava

Facets of ‘Ought’ in Kelsen's Pure Theory of Law

(2013). Facets of ‘Ought’ in Kelsen's Pure Theory of Law. Jurisprudence: Vol. 4, No. 2, pp. 246-262.

The Pure Theory of Law and Its “Modern” Positivism: International Legal Uses for Scholarship

The question that has been put to us is: What is positivism? In the following remarks, I would like to the approach which I regard as the most fitting among the modern positivists--Hans Kelsen's Pure Theory of Law--and discuss its methodological commitments as relating to the of positivism. Then I would like to test Kelsen on a point where his positivism might be weakest. Surely Kelsen cannot explain the nonpositive general principles of law? It might seem paradoxical, but it is precisely here where the particular strengths of his positivism shine, particularly as against old school voluntarism. INTRODUCTION: WHAT USE IS MODERN POSITIVISM? My answer to the question of the of a legal-theoretical approach will not elicit an answer in the two most common forms found in international legal scholarship. First, as a legal scholar I am not enamored of the quest for global justice. I do not think that it is particularly helpful to rate legal theories according to how far they go in helping to bring about certain outcomes a particular ideology may require. Second, I also do not think that it is easy to rank legal theories with respect to their explanatory powers. It is not unproblematic to rank approaches in empirical sciences according to how much of our world they explain, and it is illusory to think that non-empirical theories can be ranked thus. In one of Alfred Verdross's papers, he proposed a multiplicity of custom-creative processes to be applicable to international law. He simply accepted all procedures that usually succeed in creating customary international law. (1) The gist of this example is: theories that can explain the coming about of more customary norms than another are better. It also shows the limits of that approach, because this means begging the question. How can we find out what process usually creates customary international law, if we do not know when law has validly been created in the first place? This requires knowing the meta-norm of customary international law creation, which he sets out to find. Kelsen's use for international legal scholarship is different. It lies in the specifically legal approach which alone succeeds in not admixing the legal with the political, moral, or empirical viewpoint. His is a radical program of re-imagining the theoretical and epistemological basis of legal scholarship. The two most important and fundamental elements of this approach are the purity of legal science and the fundamental Is-Ought duality. (1) Hans Kelsen wanted to found a science of law and to purify that scholarly enterprise. Legal science should be kept free from all those elements foreign to the specific methods of a science whose only purpose is the cognition of law. It may sound frivolous to insist on sticking to the legal method in an age such as ours, where holism and the admixture, willy-nilly, of methods is praised and sometimes even required by one's peers. But Kelsen's own age was not that different from ours, and the problems that ensue from methodical syncretism are timeless. Sure, Kelsen says, we can conduct sociological studies into whether the law is generally obeyed or not; this is a very valuable field of study. But sociologists or other empirical studies can only capture the periphery, not the norms themselves. Moreover, if legal scholars admix sociological findings with the normativist approach, they risk falsifying the results of their work. The UN Charter does not change because and when the political constellations change--a scholar claiming that does not accurately portray the law. Imagine, by way of contrast, a zoologist who admixes normative aesthetics and zoology to claim that a neon-pink butterfly exists because it would be beauty in perfection. (2) Kelsen was one of the staunchest advocates of a categorical distinction between what is and what ought to be--whether that Ought is formulated in a law, morals, or unconnected to a major normative order. …

Hans Kelsen as the Epitome of Legal Modernism

This is a short paper developed out of a 2006 speech comparing Kelsen's Pure Theory of Law to other early 20th century modernist movements, in particular with the Logical Positivism of the Vienna Circle. It focuses on the question of whether, in what sense and how Hans Kelsen can be described as legal modernist. It will discuss whether Kelsen was a modernist by the standards legal science has informally and subconsciously developed for modernism.

A Concise Interpretation of Hans Kelsen's Pure Theory of Law

The principal value of the pure theory of law is that it presents the subject of its study, that is, positive law such as it is, without any unfamiliar additions. It is not only that the methodological doctrine of great heuristic possibilities is in question, but system learning as well that within its investigations ends to embrace the universal legal order interwoven in the composition of which are certain ideas of natural law all contained in many international law documents of general or regional character. Thus, the pure theory of law of Hans Kelsen, regardless of its principled negative relation towards the natural law teaching, starting exactly from the attitude that law must be presented such as it is, is forced, whether it wants to or not, also to deal with the study of the corresponding contents of natural law, which in present times under the name “human rights make an essential integral part of the existing international law. One cannot say that Hans Kelsen was totally wrong in classifying law as pure and impure. H.L.A. Hart, a later positivist, though criticized Kelsen to some extent for the exclusion of “alien elements,” derived the rule of recognition from Hans Kelsen’s Pure Theory of Law. Hart viewed the concept of rule of recognition as an evolution from Kelsen's Grundnorm. Kelsen’s pure theory of Law had a far reaching impact on the later positivists like Tony Honore and Hart. Kelsen made original, striking and valuable contribution to jurisprudence and he considerably influenced the modern legal thought.

Social Identity and Legal Personality – Collective Entities as Legal Entities?

The paper argues that the legal-theoretical treatment of the issue of promoting certain collective entities to the status of legal entities cannot be satisfactorily accomplished within the methodological models of either Hart’s analytical jurisprudence or Kelsen's Pure Theory of Law. The question of the conceptualization of collective rights proves to be largely a question of justification rather than one of mere analysis or description. In this sense, the paper proposes to elucidate various aspects of the problem of the legal shaping of the social identity of relevant collective entities with the purpose of constructing legal personality. The first section of this paper briefly shows that the question of legal personality is a general problem of legal theory, and that there is consequently nothing specifically new about collective entities as potential legal entities. The second section of the paper considers in greater detail the social and legal „construction of diversity“, on which the concept of collective rights is based. Finally, the paper suggests that the legal theory of collective rights can hardly accomplish these tasks without recourse to the methodological apparatus of both sociological and anthropological disciplines.

Hans Kelsen's Pure Theory of Law: Legality and Legitimacy (review)

Hans Kelsen's Pure Theory of Law: Legality and Legitimacy (review)

Hans Kelsen's Pure Theory of Law: Legality and Legitimacy by Lars Vinx

Hans Kelsen's Pure Theory of Law: Legality and Legitimacy by Lars Vinx

Avoiding Law's Existence

This paper argues that legal theorists should give up the pursuit of determining the mode of law's existence - whether in the form of rules, as in HLA Hart, or in the form of norms, as in Hans Kelsen. Attempting to determine the mode of law's existence results in two mistakes: first, it presupposes the possibility of content-determination (of rules or norms), resulting in a more (Kelsen) or less (Hart) stringent reference theory of meaning; second, it presupposes unproblematic access to a sphere of brute reality upon which the existence of rules or norms is said to supervene. Both mistakes are illustrated by reference to a reading of Hans Kelsen's Pure Theory of Law and HLA Hart's The Concept of Law. Two alternatives for legal theory are offered: first, meta-analysis, as exemplified in the paper, whereby a theorist considers the puzzles and difficulties of taking a certain theoretical aim (in this paper, that of determining the mode of law's existence) and talking about it in specific ways (in this paper, using existence talk); and second, an ontology-free legal theory the task of which is to pursue the improvement of the role that legal work plays in the protection of the moral quality of the lives of individuals and communities. The foundations of an ontology-free legal theory are illustrated by reference to the pragmatic pluralism of Hilary Putnam's approach to ethics in his Ethics without Ontology.

Do Rules Exist?

This paper argues that in focusing on the problem of whether, and if so how, rules of law exist, legal theory endangers its capacity to both account for and evaluate how law accompanies a community in its adaptation to emerging social problems. Two classical works of legal theory are analysed, Hans Kelsen's Pure Theory of Law and HLA Hart's The Concept of Law, with a view to revealing the weaknesses of a legal theoretical approach aimed at describing the conditions under which norms or rules exist as laws. An alternative is offered in the name of the concept of qualifiers. This concept is elaborated upon by reference to the work of GEM Anscombe, Bernard Jackson and Geoffrey Samuel, and an attempt is made to show how the concept of qualifiers can refocus the emphasis of legal theory on the more or less successful use of legal language by members of a legal community for the purposes of proposing legal solutions to social problems. Ultimately, the concept of qualifiers offers not only a different way of thinking about legal language, but also a different way of thinking about the limited role of language in theorising about any sort of phenomenon, including law.

10.2307/3505163

10.2307/3505163

Hans Kelsen's Earliest Legal Theory: Critical Constructivism

Legal positivism in the jurisprudential tradition of the European Continent is characterised by what might be called the facticity thesis: the law is ultimately explicable in terms of, or 'reducible to,' a concatenation of fact whether it be power, the will of the sovereign, or the community's acceptance of the legal system.1 Shifting the idiom to a semantic counterpart of the facticity thesis, the legal theorist of a reductive persuasion 'provide[s] eliminative definitions of normative terms,'2 introducing instead non-normative, descriptive terms, in what Joseph Raz has called the reductive semantic thesis.3 Kelsen's conviction that the facticity thesis is wrongheaded drives his theory, particularly in the very early work. In place of the legal positivist's facticity thesis, Kelsen introduces a normativity thesis, which calls for an explication of law and of legal obligation in particular altogether independently of fact. Shifting the idiom to a semantic counterpart of the normativity thesis, the legal theorist of a non-reductive persuasion argues that juridico-normative terms cannot be eliminated in favour of non-normative, descriptive terms, or explicated by means of them. Kelsen's endorsement of the normativity thesis represents, inter alia, his rejection of every fact-based legal theory. At its core, Kelsen's Pure Theory of Law does not consort with facts at all.

The Neo-Kantian Dimension of Kelsen's Pure Theory of Law

The Neo-Kantian Dimension of Kelsen's Pure Theory of Law Get access STANLEY L. PAULSON STANLEY L. PAULSON * Professor of Law and Professor of Philosophy, Washington University in St Louis Search for other works by this author on: Oxford Academic Google Scholar Oxford Journal of Legal Studies, Volume 12, Issue 3, Autumn 1992, Pages 311–332, https://doi.org/10.1093/ojls/12.3.311 Published: 01 October 1992