Pure Theory Of Law Research Articles

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. …

Austin, Kelsen, and the Model of Sovereignty

Hans Kelsen’s critique of John Austin has so far attracted little attention among legal theorists. This article argues that Kelsen’s attack on Austin anticipated the key elements of Hart’s rejection of the Austinian conception of law as sanction-backed sovereign command. At the same time, the way in which Kelsen presents his critique of Austin’s conception of sovereignty reveals important differences in purpose and intention between Kelsen’s Pure Theory of Law and Hart’s legal theory. The Pure Theory of Law is animated by an ideal of legality that is alien to purely descriptive jurisprudential approaches in the Hartian tradition.The article concludes that this difference between Kelsen and Hart merits further exploration and that it might help to show that the Pure Theory of Law is still relevant to contemporary legal theory.

Hans Kelsen: aportaciones teóricas de la teoría pura del Derecho

La finalidad fundamental es la de presentar brevemente las aportaciones de Kelsen a diversos campos del pensamiento jurídico y filosófico. Por ello, se expone tanto el concepto de la pureza metódica como la construcción conceptual en los «Problemas Capitales» de la norma coactiva y de la imputación (Sollen). Se expone la tesis de la identidad del Derecho y el Estado y se indica cómo se plantean y resuelven jurídicamente los problemas relativos al Estado. Dentro de la Dinámica Jurídica se analizan escuetamente las formas de Estado y sus relaciones con las concepciones del mundo. Se hace mención a la primera edición de la Teoría pura del Derecho y de la publicación de la Teoría general del Derecho y del Estado. Se presentan las aportaciones a la teoría de la constitución y del Derecho internacional y se enumeran todos los ensayos sobre la filosofía de Platón y sobre el origen de la ley de causalidad a partir de conceptos normativos, en especial el principio de retribución, así como las críticas a la teoría política y jurídica del marxismo y del comunismo.

The Kelsen/Schmitt Controversy and the Evolving Relations between Constitutional and International Law

AbstractThe article examines Hans Kelsen's and Carl Schmitt's lines of thought concerning the relationship between constitutional and international law, with the aim of ascertaining their respective ability to capture developments affecting that relationship, even those of a contradictory nature. It is significant that, while the rise of wars of humanitarian intervention in the post‐Cold War era has evoked Schmitt's concept of the bellum iustum, the evolution in the direction of the “constitutionalisation of international law” has drawn attention to Kelsen's theoretical approach. However, these assumptions rely heavily on the opposing objectives that the two authors claimed to pursue, such as, respectively, the search for the ultimate seat of political power and a pure theory of law. Things are more complicated, both because these objectives by no means exhaust Kelsen's and Schmitt's lines of thought, and because the conception of sovereignty as omnipotence, at the core of the Weimar controversy, is now behind us.

Realism and international law: the challenge of John H. Herz

The proliferation, globalization, and fragmentation of law in world politics have fostered an attempt to re-integrate International Law (IL) and International Relations (IR) scholarship, but so far the contribution of realist theory to this interdisciplinary perspective has been meagre. Combining intellectual history, the jurisprudence of IL and IR theory, this article provides an analysis of John H. Herz’s classical realism and its perspective on international law. In retrieving this vision, the article emphasizes the political and intellectual context from which Herz’s realism developed: the study of public law in Germany during the interwar period and in particular the contribution of Hans Kelsen and the pure theory of law to the study of international law. Herz was deeply inspired by Kelsen but he criticized the pure theory for ignoring the sociological foundations of law. Following his emigration to the United States, Herz embraced realism but without disregarding international law. Indeed, his mature, globally oriented realism offers a balanced, fruitful perspective for thinking about the relationship between politics and law that is deeply relevant for contemporary theory: it challenges modern, law-blind variants of realism and holds considerable potential for contributing to the approaches that have most successfully studied the law–politics nexus.

A teoria da interpretação jurídica de Hans Kelsen: uma crítica a partir da obra de Friedrich Müller

The article examines the theory of legal interpretation as presented by Hans Kelsen on his “Pure Theory of Law”, under the critical approach of Friedrich Müller, on his “Structuring Theory of Law” [Strukturiende Rechstslehre]. The article shall demonstrate how Kelsen’s distinction between sein [being] and sollen [shouldbe] – as a fundamental feature of his epistemological project – influenced the theory of interpretation he proposed. Also, this work presents in detail the theory of legal interpretation of Kelsen to thereafter make an inventory of critics formulated about it, under the guideline from works of Friedrich Müller, besides the approach of other authors.

TEORIA DOS SISTEMAS SOCIAIS: UMA ABORDAGEM INTRODUTÓRIA AO PENSAMENTO DE NIKLAS LUHMANN.

This present article aims to insert itself into the debate on the congestion of traditional epistemological matrix analysis of the legal phenomenon, based on the linear relationship between subject, object and the consequent need to overcome the theories of the law created under these databases, presenting an alternative consistent with the complexity of contemporary society, the theory of social systems, developed by Niklas Luhmann. Indeed, the introduction of cash inflows arising from constructivism to the theory of social systems to overcome the linear relation subject / object of knowledge by introducing a human autologous component that leads to the conclusion that the paradox is constitutive of reality, which, obviously, if insert law. Moreover, the introduction of developments forged in the context of other disciplines, enabling the systems theory to develop a revolutionary conceptual contribution, which will be reflected in the legal sense, in bringing some solutions before the limits imposed by the Pure Theory of Law, an exemplar of the substrate epistemological tradition.

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.

Kelsen e o trilema de Münchhausen

The Hans Kelsen’s thought is one of the most important contributions to the contemporary legal science, especially with the upcoming of his main work,  Pure Theory of Law, in which he launches the groundings of a theoretical building that will be quickly recognized as one of the most important epistemological and methodological construction about Law. However, since the new epistemological paradigms connected with anti-metaphysical and anti-positivist positions, incoherencies are showed, making necessary some critics. In this point, connected with the work “Treatise on critical reason”, by Hans Albert, we intend to analyze the Kelsen’s grounding about State Law’s validity, especially with the prism of Munchausen’s trilemma enounced by Albert, to judge its pertinence.

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.

The Pure Theory of Law and the Fragile New Democracies of the Developing World

Political and socio‐economic distress invariably accompanies democratic orders in Nigeria. Usually, the people turn to the military, justifying this by reference to a whimsically transferable peoples’ will as Grundnorm (a basic norm, order or rule that forms an underlying basis for the legal system). However, though ‘We the People’ is contained in the Preamble, it is dangerous to so situate the Grundnorm in the will of the people other than that will expressed by them in the Constitution. That said, the Grundnorm is still, for juristic and jurisprudential reasons, to be found in the Preamble. For new democracies, the Nigerian example illustrates how not to employ the Grundnorm theory if democracy is to survive.

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.

Problems of theStufenbaulehre: Kelsen’s Failure to Derive the Validity of a Norm from Another Norm

TheStufenbaulehreis a central and founding element of the Pure Theory of Law (PTL).Most of the criticism ofStufenbaulehretargets the idea of the basic norm (Grundnorm), however unjustified. This criticism stems from a misunderstanding of the presumptive character of the basic norm and of the whole legal order. Others have criticised the relativisation of the difference between individual and general norms, Kelsen’s monism, and the determination of the validity of a norm by a single other norm. This can be refuted as well - either because their critique does not concern an essential part ofStufenbaulehre(monism), or becauseStufenbaulehrecan be saved by making a small modification to it. However, there is one lethal criticism. It concerns the founding thought of the wholeStufenbaulehre, i.e., the derivation of validity. In a law-making process, there is never a derivation of validity: the logical result of a law-making process is only a norm saying “The new norm ought to be valid.” Whether the new norm is in fact valid, is a different issue which is not dealt with by the PTL. This has serious consequences: Without this derivationStufenbaulehrecannot survive, and withoutStufenbaulehre, PTL cannot survive either. Some valuable parts of PTL might be used in other legal theories, but these are nothing but transplanted organs from the dead body of PTL whose heart-Stufenbaulehre-can no longer keep the body alive.

But Hans Kelsen was not born in Africa: a reply to Thaddeus Metz

I argue that Metz’s undertaking, in seeking a ‘comprehensive basic norm’ to underpin African ethics, is similar to Hans Kelsen’s postulation of the Grundnorm in his Pure Theory of Law. But African ethics does not need to be underpinned by an approach such as Kelsen’s. In my view, Metz’s preference for seeking to develop a Grundnorm rests upon a failure to attend carefully to the distinctness of African ethical thinking from Western ethical thinking. This failure is manifest in a spurious distinction (on which Metz relies) between ‘moral anthropology’ / ‘cultural studies’ and ‘normative theory’. It is also manifest in Metz’s failure to attend carefully to the work of Wiredu and Bujo, both of whom present systematic, critical analyses of African ethical thinking while implicitly rejecting the quest for a Grund norm as being unAfrican.

La critique perelmanienne de la théorie pure du droit: Essai de synthèse

AbstractChaim Perelman's critique of Kelsen's pure theory of law concerns mainly two elements: his theory of interpretation and his conception of court decision. Although a court decision is never formally deduced from the law, one cannot say neither that it is “arbitrary”: it leans on reasons, which cannot be reduced to the judge's individual motives and whose value can thus be assessed by the “science of law.” As for interpretation, it is not limited to establishing the meaning of the law's terms, but contributes also to specifying the meaning of the law itself in relation to cultural values—even if these values are not explicitly mentioned by the law. In confining the judge's role to the strict application of the law, the Kelsenian conception of judicial power defies the Kelsenian epistemological imperative, which is to describe “how the law is, not how it ought to be.”

Antinomies of the United Nations: Hans Kelsen and Alf Ross on the Charter

In Towards a Realistic Jurisprudence, Alf Ross locates his theoretical position as a via media between the ‘pure theory of law’ of his teacher, Hans Kelsen, and the American legal realism he identified with Jerome Frank. When Ross and Kelsen came, however, to publish their respective studies of the UN Charter in 1950 — Ross' Constitution of the United Nations and Kelsen's massive The Law of the United Nations — their perspectives converge. This article places their analysis of the UN Charter in the context of their theoretical writings, but despite Kelsen's pure theory of law and Ross' Scandinavian realism, the two share a sense of law's dependence upon sanction and an understanding of the political underpinning of law's creation. And both held a strong commitment to international law doctrine, so that when they came to criticize the Charter, whether for its logical inconsistencies or the increased role of the political, they depict the Charter as ultimately representing a legal system that takes up the space of traditional international law. In their two works, Kelsen and Ross both register a tragic concern about that disappearing act of traditional international law doctrine.