Pure Theory Of Law Research Articles

Kantian Maxims in the Theory of Law

Introduction. The article is devoted to the 300th anniversary of the birth of Immanuel Kant, a great representative of German classical philosophy. The article shows how the Kantian philosophical system influenced the methodology of legal science, and especially the study of the problems of the theory of law. The famous “The Pure Theory of Law” by H. Kelsen is based on the distinction between the “is” and “ought”, and also an independent trend called neo-Kantianism was formed in legal science. Theoretical Basis. Methods. The theoretical basis is formed by the works of D. Hume, A. Kaufman, G. Radbruch, E. Husserl. This article used general scientific methods: analysis, synthesis, systematisation. In addition, the author built his judgements on the basis of comparative analysis, formal-legal and hermeneutic methods of research. Results. Kant’s philosophical maxims formed the basis of his concept of positive law. It can be safely noted that it was one of the most significant attempts in the theory of law to substantiate the essence of positive law on rationalistic theoretical and cognitive grounds. In this connection, let us recall that according to Kant, morality is the result of the reflection of man as noumena, an entity free in the absolute sense. Discussion and Conclusion. According to the results of the study, the conclusion is formulated that the philosophical concept of I. Kant laid the methodological foundation for solving the problem of distinguishing law and morality, as well as in the context of his doctrine of logic understanding of the essence and nature of the judgement, which is especially important for the training of specialists for the judicial system.

Legal Certainty In Financial Disputes Case Resolution Progressive Legal Perspective

Pure Legal Theory (The Pure Theory of Law) is a positive legal theory. However, it does not discuss positive Law that applies in a particular legal system; it only discusses general legal theory. Hans Kelsen's presentation of Pure Legal Theory aims to explain the nature of Law and methods of making Law rather than explaining what the Law should be or the best way for Law to be created. This writing uses descriptive legal research, in which the author uses a normative juridical research type using the Library Research data collection method. This research aims to determine how the legal certainty and protection of the parties in mediating the resolution of Sharia financial disputes, a comparison of progressive legal analysis of Hans Kelsen and Satjipto Raharjo's legal theory in resolving Sharia financial disputes. Based on the research and discussion results, a picture is obtained that legal certainty (rechtssicherheit) Legal certainty is the certainty of laws or regulations; all kinds of methods, methods, and so on must be based on laws or regulations. Within legal certainty, there are positive laws and written laws. Normative legal certainty is when a regulation that regulates it clearly and logically is created and promulgated. Progressive Law wants to return the Law to the right track (on the right track). For this reason, Satjipto Rahardjo thinks that legal breakthroughs are needed (legal breakthroughs, not legal breaking) in law formation and enforcement.

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.

Kelsen-Schmitt Tartışması Aracılığıyla Devlet-Hukuk İlişkisini Yeniden Düşünmek: Eleştirel Bir Giriş

This article examines the law-state relationship in the modern state by comparing the ideas of Carl Schmitt and Hans Kelsen. In this context, firstly, what modern law is and where its differences emerge from will be discussed. Then, the article examines Hans Kelsen's conceptualization of 'Grundnorm', which created the constitution(s) in the modern state(s), as a source of legitimacy in the modern state. The law-state relationship that Kelsen builds on the basis of his 'Pure Theory of Law' is compared to the situation in which Carl Schmitt considers law as the 'decision' of the sovereign. Although Kelsen has accepted law as thing-in-itself and intensified his efforts to build an objective science, the juridical science presents a legitimacy in factual order; even if it was not Kelsen’s goal. Kelsen, however, neglects what is political and failed to examine the appearance of factual order or law in practical social order and their relationship. On the other hand, Schmitt did not much get closer to Kelsen’s approach- building the law with Grundnorm- with his emphasis on sovereignty as the constituent will and unique source of legitimacy. Over what is political and political unity, Schmitt’s approach is based on factual order by defining the law over extraordinary “decision” of the sovereign which is identical with the society/people. The approach to understand the modern state in this article both attaches importance to the Kelsen’s emphasis on the juridical science and attaches equivalent value to the notion of sovereignty which Schmitt rightfully developed. In the last part, this article argues that the law-state relationship in the modern state emerged with both Grundnorm and 'sovereignty', that is, in the partnership of both.

Kelsen’s Pure Theory of Law: An Overview

Abstract: This paper deals with the origins of the many, frequently quite unfavourable, criticisms made of Kelson's pure theory of law and reveals key characteristics of several stages in its growth; point out the importance of Merkl and Verdross' work in developing the pure theory of law as well as the driving forces behind Kelsen's attempts to formalise jurisprudence (the science of law) in order to set the stage for an accurate and unbiased study of positive law; he also assesses the significance of Kelsen's normativisms and offers his opinions on how the pure theory of law should be developed going forward and its impact on legal system and its application along with the case analysis

Adolf Merkl on the Form of Government of the Kingdom of Hungary without a King

After the People’s Republic and Soviet Republic (1918/19), the new right-wing regime in Hungary restored the monarchical form of government. However, in view of the break of the legal continuity and the absence of a (new) king, this politics turned out to be more of a state ideology than a real legal continuity. The Austrian legal scholar Adolf Julius Merkl published a paper about why the so-called “Kingdom of Hungary” should be regarded as a republic. His main argument was, that the chief of state (ie the regent elected in 1920) did not resemble to a monarch, because the regent did not rule the country for life. Merklʼs paper appeared in a Hungarian scientific journal in 1925 and it has been available only in Hungarian to this day. In his analysis, Merkl refuted the doctrine that Hungary was a kingdom. On the one hand, he applied his own theory about the distinction between monarchy and republic to the Hungarian case study, and, on the other hand, he deconstructed the ideological thesis of the legal continuity by using the methods of “Pure Theory of Law”. The following article tries to contextualize Merklʼs analysis: My Paper paper describes the historical developments and the legal debates in Hungary after 1918 by emphasizing the differences between the “Pure Theory of Law” and the conservative-traditionalist, Hungarian state doctrine.

No Pure Theory of Law without Free Will

No Pure Theory of Law without Free Will

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.

KARL SCHMITT AND HANS KELSEN'S DISCUSSION ON THE GUARANTOR OF THE CONSTITUTION IN THE CONTEXT OF THE CONFLICT OF POLITICAL AND LEGAL DOCTRINES

Aim. To establish common and diverging points of Karl Schmitt's decisionism and Hans Kelsen's pure theory of law, which manifested themselves during the discussion on the guarantor of constitution.Methodology. The approach of the Cambridge School of Conceptual History, described in the methodological works of the political thought historian Quentin Skinner, is used as the methodological basis of the study. The key approach is complemented by the use of special methods, which include comparative, formal-legal, and historical-biographical methods.Results. It is revealed that the discussion about the guarantor of the constitution demonstrates a high degree of antagonism between the political and legal teachings of K. Schmitt and G. Kelsen. These contradictions concern not so much specific political and legal requirements (recognition of the Reich President as the guarantor of the constitution or the establishment of a constitutional court for the same purpose), but theoretical and methodological objectives and interpretations of key concepts on which thinkers base their positions, as well as the argumentative strategies that seem convincing and are used by them to defend their own points of view.Research implications. The theoretical significance lies in the establishment of the factors underlying the contradictions between the doctrines, as well as the role of discussion in the formation of each of them. At the same time, the acuteness of the disagreements revealed during the polemic problematizes the construction of the state-legal theory as a kind of integral structure. In addition to this, it seems that the propositions put forward have significant heuristic potential and, subject to further refinement, can partially be used to explain the development of the history of political and legal thought.

Wrongs and Sanctions in the Pure Theory of Law

Wrongs and Sanctions in the Pure Theory of Law

ANALISIS YURIDIS PENGARUH USIA TERHADAP TINGGINYA TINGKAT PERCERAIAN DI KOTA BATAM (STUDI PENELITIAN DI PENGADILAN AGAMA KELAS IA BATAM)

This journal is entitled Juridical Analysis of the Effect of Age on the High Level of Divorce in Batam City (Research Study at the Religious Court Class Ia Batam) on Jalan RE. Martadinata Number 5, Sekupang, Batam City, Riau Islands 29425, with the construction problems: What are the legal arrangements regarding filing for divorce at the Batam Class IA Religious Court?; and what are the factors behind the high divorce rate in Batam and what are the solutions to reduce the high divorce rate? The qualification/type of writing for this journal uses a normative legal writing type, which is supported by sociological/empirical legal research. To analyze some of the problems in this journal, a big theory (The Pure Theory of Law) is used. Legal positivism (positive law school) which sees the need to clearly separate law and morals (between applicable law and the law that should be), and theory (Law is Command of a Lawgiver) John Austin, namely the law is considered as a logical system, fixed and closed (closed logical system), the law is strictly separated from justice and is not based on good and bad values. Legal arrangements regarding filing for divorce in the Religious Courts refer to Law Number 1 of 1974 concerning Marriage, Government Regulation of the Republic of Indonesia Number 9 of 1975 concerning the Implementation of Law Number of 1974 concerning Marriage, Law Number 32 of 1954 concerning Enforcement of Laws - Law of the Republic of Indonesia dated November 21, 1946 Number 22 of 1946 concerning Registration of Marriage, Divorce, Reconciliation in All Regions Outside Java and Madura, Instruction of the President of the Republic of Indonesia Number 1 of 1991 concerning the Dissemination of Compilation of Islamic Law, Law of the Republic of Indonesia Number 3 of 2006 concerning Amendments to Law Number 7 of 1989 concerning Religious Courts.Keywords: Marriage, Divorce, Age Effect.

Hans Kelsen’s Pure Theory of Law as Critique of the “Authoritarian” Understanding of Law and Jurisprudence

In this paper, I analyse Hans Kelsen’s understanding of jurisprudence and law – by contrasting the normative-dogmatic understanding, which I will call “authoritarian”. By establishing the primacy of politics and rejecting the prescriptive function of jurisprudence, Hans Kelsen enabled a democratic concept of law (and of jurisprudence), and at the same time a critical and political approach. Kelsen defines the law from a dynamic perspective, which justifies the constant changeability of the law – and in this respect the primacy of democratic politics over dogmatic jurisprudence. The normative basis for Kelsen’s understanding of jurisprudence is his relativism, which is based on a moral position on the autonomy of the individual.

The Category of Obligation according to H. Kelsen’s Pure Theory of Law

The Category of Obligation according to H. Kelsen’s Pure Theory of Law

Behind the theoretical debate between Hans Kelsen and Carl Schmitt: the nineteenth century constitutionalism and German public law

This paper aims at identifying the reminiscences of 19th century constitutionalism and German public law behind the theoretical discussion around the constitutional jurisdiction in the doctrines of Hans Kelsen and Carl Schmitt. The doctrines on the question of sovereignty and constitution between the 19th and early 20th centuries also become the object of study as they reflect on the theoretical debate between Hans Kelsen's Neokantian positivism and Carl Schmitt's decisionism. Finally, from the notions of separation of powers, sovereignty, and constitution provided by these authors, the research aims at identifying the theoretical lines and concepts that may have contributed to the construction of the notion of guardian of the constitution. As a result, it was possible to verify that while Schmitt's constitutional theory carries much of his "political theology" with it, Kelsen sought, with his Pure Theory of Law, to evade from the theological method present in other legal theories (especially in Schmitt's). His intention was to build a legal science free of strange elements to Law, such as morality, politics and religion, which reflected in the choice of who should be the guardian of the Constitution. We developed this research through the analysis of historical sources and bibliographical research in the main writings of Carl Schmitt and Hans Kelsen on constitutional theory. As historiography, we sought specialized literature on the main subjects and theorists researched, from great names from that time and by contemporary well-known authors.

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.

Permissions, Deontic Voids, and the Karamazov Argument

Abstract: This essay criticizes three positions concerning permissions taken by Christoph Kletzer in his book The Idea of a Pure Theory of Law. First, Kletzer argues that Hans Kelsen should have understood X has having a legal obligation to φ if and only if someone else is permitted (rather than empowered) to exercise force upon X for not-φ-ing. Kelsen in fact had good reasons to speak of empowerment rather than only of permission. The second topic concerns the type of strong permission that Joseph Raz calls exclusionary. Kletzer argues that Raz’s definition of an exclusionary permission generates an infinite regress. In what is arguably the most detailed account of the structure of exclusionary permissions in print, this essay defends Raz’s definition. The third and primary topic concerns Kletzer’s understanding of a permission to φ as a deontic void: the absence of duties to φ and of duties to not-φ. Many share Kletzer’s view. Joseph Raz understands weak permissions as absences. And the usual reading of Wesley Newcomb Hohfeld’s related idea of a privilege to φ is that it is the absence of a duty to not-φ. But the absence theory is mistaken. When a normative system does not exist, there is no permission to φ, even though there are no duties to φ or to not-φ either. The same is true when φ-ing is outside the system’s scope and when φ-ing (although within the system’s scope) falls in a gap in the system. Conversely, if a normative system is inconsistent, one can have a permission to φ and a duty to not-φ (or to φ). It follows that a permission, even a weak permission, is a deontic something, not a nothing, and that weak permissions can have an effect on our practical reasoning. The same points apply to Hohfeldian privileges.

The problem of anti-psychologism in Hans Kelsen’s “Pure Theory of Law”

This article examines the nature and specificity of the criticism of psychologism as a theoretical-methodological orientation towards studying law and its interpretation, which in particular was associated with such version of interpretation of law as the “Pure Theory of Law” of Hans Kelsen. More in-depth representations of modern legal theory in understanding the patterns of law and its essential aspects requires the due coverage of the history of psychological and anti-psychological approaches towards law that form of the major oppositions in the development of legal though at the turn of the XIX – XX centuries. Multiple aspects of H. Kelsen's legal views are yet to be examined, including the correlation of his doctrine with other doctrines, as well as the nature of substantiation of law and the analysis of legal phenomena. The scientific novelty of lies in the fact that based on the analysis of legal views of the Austrian jurist Hans Kelsen wirh his pronounced claim to exclude all “non-legal’ elements, it is revealed that a significant part of conceptual-logical apparatus of Kelsen’s teaching and the approaches towards substantiation of law were psychological in nature. Unlike the objective-idealistic positions of H. Kelsen, legal Neo-Kantianism was methodologically more accurate in elucidation of interrelation between the actual legal phenomenon and the role of gnoseological methods of perception and comprehension of law. The assessment of H. Kelsen’s doctrine as the theory of law is subject to criticism in this article, since in reality it is limited to the issues of legal methodology.

A Pure Theory with a Naturalistic Fallacy? A Critique of Kletzer’s Reformulation

Abstract: Kletzer’s book is the most important and most original contribution to the project of the Pure Theory of law that we have seen in decades. The reformulation that is offered by Kletzer raises the question, however, whether it is also consistent with Kelsen’s original project. This may be doubted, for it is to be feared that Kletzer’s theory involves a variety of the naturalistic fallacy and celebrates de facto as natural law the law of the jungle. As an attempt to continue the legacy of the Pure Theory, Kletzer’s contribution fails. The root of the failure lies in the conflation of alethic and deontic modalities.

Kletzer on Permissions

Abstract: Kelsen argued that any legal system claims a monopoly of the legitimate use of coercive force. Where there is law, Kelsen held, uses of force are prohibited unless they are specifically authorized by the law. Christoph Kletzer's reconstruction of the Pure Theory of Law offers a more austere picture of the relation between law and coercive force. According to Kletzer, the law regulates the use of force simply by permitting it. To make good on this claim, Kletzer must show that it is possible to give a satisfactory description of the workings of legal order in terms of permissions of the use of force alone. This paper argues that an account of legal order as austere as this cannot be given. The permissive operations of the law Kletzer takes to be fundamental presuppose a prior prohibition of unlawful uses of coercion.

Law and Morality: One Hundred Years of Solitude

This article provides a sweeping overview of the long-running debate on the relationship between law and morality, starting with the 1934 publication of Hans Kelsen’s Pure Theory of Law and continuing to the present (Robert Alexy, John Finnis). Deftly analyzed in this work are the noteworthy arguments of Anglo-Saxon legal positivists H.L.A. Hart and Joseph Raz, Ronald Dworkin’s harsh critique of positivism, critical contributions to the debate by John Rawls and Jurgen Habermas, and advances in natural law theory put forward by Jacques Maritain, Michel Villey, John Finnis, and Javier Hervada.