Pure Theory Of Law Research Articles

Protection of Fundamental Rights by Constitutional Courts - A Comparative Perspective

"Man", said Benjamin Franklin, "is a tool-making animal". A major contribution of 20th century Western legal thought to tool-making was possibly the publication in 1914 of Reichgesetz und Landesgesetz nach der österreichen Verfassung1 by Hans Kelsen, a Czech lawyer, but Austrian by adoption. Kelsen is noted for his "pure theory of law". By conferring upon a special constitutional court the exclusive power to rule on the constitutionality of legislation and to refuse to enforce legislation that in its judgment violated the constitution, Kelsen found a way for the United States pattern of constitutional adjudication (as established in 1803 by Chief Justice John Marshall in Marbury v Madison) to work in countries which have (as in the United States) a written and "rigid" Basic Law, and even where the doctrine of precedent does not operate.This is a very short history of the development of that Kelsen "tool" and an evaluation of it.

The European tradition in international law: Charles de Visscher. By way of an introduction

Charles de Visscher, in direct contrast to Hans Kelsen, did not believe in any 'pure theory of law', since for him the relationship between law and politics is a key feature of international law. However, contrary to certain current tendencies, his work does not start from an evasive 'sociological' perspective, the scientific status of which can barely be traced. Trained in the most classical humanistic tradition, but, at the same time, deeply influenced by the 'Personalism' of Emmanuel Mounier, a prominent figure of Christian existentialism, Charles de Visscher remains a jurist, in the technical sense of the term, able to master every aspect of legal interstate relations. Being a formal technician, law is both a tool for international politics and for the promotion of common values. Nevertheless, he provides one of the best examples, among the diverse European internationalists, of the fact that one can (and, I would add, should), be both a technician of the law and an analyst of what de Visscher called its 'human ends', emphasizing, more than 60 years ago, but, even more, after the adoption of the UN Charter in 1945, the basic role played by the protection of human rights as one of the fundaments of international law. Reconciling consideration of political reality, formal analysis and fundamental ethics, Charles de Visscher still provides us with an answer to current trends which schematically oppose 'realists' and 'liberals'. Charles de Visscher would probably have agreed that the analysis of international law should give greater respect to nuance. This remains, in general, the prevailing view among European internationalists.

10.1023/A:1006457907678

Authority qua empowerment is theweak reading of authority in Hans Kelsen's writings.On the one hand, this reading appears to beunresponsive to the problem of authority as we know itfrom the tradition. On the other hand, it squares withlegal positivism. Is Kelsen a legal positivist?Not without qualification. For he defends anormativity thesis along with the separation thesis,and it is at any rate arguable that the normativitythesis mandates a stronger reading of authority thanthat modelled on empowerment. I offer, in the paper,a prima facie case on behalf of a stronger reading ofauthority in Kelsen. I go on to argue, however, thatthe textual evidence weighs heavily in favour of theweak reading. Both nomostatics and nomodynamics arepervasive points of view in the Pure Theory of Law,and both reflect species of empowerment as theendpoint of Kelsen's reconstructions.

10.2307/3505163

10.2307/3505163

Kelsen and his Circle: The Viennese Years

This article situates Kelsen and his work in the context of the Austrian culture in the early part of this century. After sketching out the cultural and social influences that affected his family life and education, the author outlines the basic ideas of Kelsen's principal work, the Pure Theory of Law. He then goes on to discuss the dynamic links and exchanges between Kelsen and his circle and other intellectual movements active at the time in Vienna. Three such movements are examined at length. While Kelsen never actually joined a political party, he expressed some sympathy for 'Red Vienna' and took part in discussions and activities associated with the Austrian Social Democratic Party. Kelsen's neo-Kantian concept of the norm was clearly not in line with the Logical Empiricism of the Vienna Circle. Yet, his concern with the development of human thinking brought him close to Neurath. Finally, Kelsen's contacts with Freud were manifold and the influence of Freud's theories is tangible in his writings.

Beyond Procedural Legitimation: Legality and Its ‘Infictions’

The legitimacy of a legal and political order is a challenging modern legal, philosophical, and sociological problem. It has many practical aspects and consequences for social, political, and legal activity. Its importance increases especially during times of complex socio-political and legal changes or reconstruction.' The relation between legality and legitimacy was an important topic for legal philosophy and sociology in the first half of the twentieth century. For example, Max Weber classified legal political domination as a domination legitimated by general legal rules, rational administration, and bureaucratic procedures.2 Another German scholar, Carl Schmitt, worked on the principle of formal or technical legality and its power to legitimate political authority.3 Schmitt reduced conditions of legitimacy to the legal exercise of political power and, according to him, legality is the justification of the state.4 The topic of the legitimacy of law also appears, though only as a marginal problem, in the pure theory of law developed by Hans Kelsen. Hans Kelsen, and most legal positivists, define the legitimacy of a legal rule in two ways: formally, as a fact that a rule has been issued by the legally empowered body or, substantively, legitimacy is identified with the efficacy of a legal rule within the system of positive law and society itself.5 Joseph Raz's book, The Authority of Law, in which the author attempted to harmonize a formal legalist approach with substantive political and moral principles, does not break this positivistic framework in spite of the fact that Raz has greater respect for the interdependence of law and political or moral principles.6 Analytical jurisprudence, even after the fundamental innovations brought about by H.L.A. Hart or, more recently, by Joseph Raz, still builds on

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 Concept of Law Revisited

Law is a social construction. It is a historically contingent feature of certain societies, one whose emergence is signaled by the rise of a systematic form of social control and elite domination. In one way it supersedes custom, in another it rests on it, for law is a system of primary social rules that direct and appraise behavior, together with secondary social rules that identify, change, and enforce the primary rules. Law may be beneficial, but only in some contexts and always at a price, at the risk of grave injustice; our appropriate attitude to it is therefore one of caution rather than celebration. Law pretends, also, to an objectivity that it does not have, for whatever judges may say, they in fact wield serious political power to create law. Not only is law therefore political, but so is legal theory there can be no pure theory of law; concepts drawn from the law itself are inadequate to understand its nature. Legal theory is thus neither the sole preserve, nor even the natural habitat, of lawyers or law professors: it is just one part of a general social and political theory. We need such a theory, not to help decide cases or defend clients, but to understand ourselves, our culture, and our institutions, and to promote serious moral assessment of those institutions, an assessment that must always take into account the conflicting realities of life. Those are the most important theses of the late H.L.A. Hart's The Concept of Law, published originally in 1961. Like some other great works of philosophy, however, Hart's book is known as much by rumor as by reading, so it will be unsurprising if, to some, that does not sound like Hart at all. For what circulates as his views

Kelsen's Legal Theory: the Final Round

Whereas the traditional view has it that if willed, then legally valid, Kelsen inverts the pattern to read that if legally valid, then willed. He makes comparable inversions in criminal law and in public law,4 all of them marking a radical departure from the tradition. 'Will', the explicans of the law in traditional legal positivism or voluntarism, survives in Kelsen's work only as a derived notion. 'Law is norm', Kelsen writes,5 not 'will', and, over a period of nearly half a century, he works at an 'epistemic justification' of the notion. His effort is known by the name he gave to it-the 'Pure Theory of Law'. The theory is 'pure', he explains, because it is free of the 'alien' elements that are part of volitional or * Professor of Law and Professor of Philosophy, Washington University, St Louis, USA. t Hans Kelsen, General Theory of Norms, translated from the German by Michael Hartney, Oxford: Clarendon Press, 1991. ISBN 0-19-825217-X, Ix, 465 pages, ?55 (hardback only), (hereafter, in the notes, I use the abbreviation 'GTN').

Qu'est-ce que la théorie pure du droit ?

What is Pure Theory of Law ? The text of Kelsen translated here dates from 1953. It therefore falls squarely between the two editions of his Pure Theory of Law (1934 and 1960). In this article, Kelsen re-examines the essential theses of his theory in an effort to demonstrate the structural specificity demanded by any valid theory of law, contrasting it to ethics and politics, as well as to the natural sciences grounded in principles of causality.

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

On the theory of interpretation

The legal system is not a system of co-ordinate norms, found at one and the same level. Rather, it is a hierarchical structure of superordinate and subordinate legal norms, whose reciprocal relations are illuminated by the structural analysis undertaken by the Pure Theory of Law. The enquiry into the hierarchical structure of the legal system has significant consequences for the problem of interpretation. Interpretation is an intellectual activity accompanying the law-creating process as it moves from a higher level of the hierarchical structure to the lower level governed by this higher level. In the standard case, that of interpreting statutes, the question to be answered is how, in applying the general norm (the statute) to a concrete material fact, one is to arrive at a corresponding individual norm (a judicial decision or an administrative act).

Kelsen on legal interpretation

A number of writers have invited attention to the fact that Kelsen, in a long and extraordinarily productive career, gave very little attention to questions of legal interpretation. Kelsen's younger colleague in the Vienna School of Legal Theory, Fritz Schreier, himself a legal philosopher of note, remarked in 1929 that the Vienna School had neglected interpretation. Michael Thaler made the same point a half century later, writing that Kelsen devoted himself ‘entirely to an elucidation of the object of interpretation’, that is to say, the legal norm itself, without providing any details on ‘ how interpretation is to be done’. Other recent writers go further: Klaus Adomeit dismisses Kelsen's theory of interpretation as ‘methodological nihilism’ Günther Winkler writes that Kelsen’s theory, although ‘simple’, is both ‘mistaken and misleading’. Indeed, most recent writers who have examined the Pure Theory of Law on questions of legal interpretation take a dim view of Kelsen's work in the field.

An Antimony in Kelsen's Pure Theory of Law*

Abstract. Some important ideas in Kelsen's Pure Theory of Law can be traced back to Kantian tradition, which has been very influential in Kelsen's thought, particularly in his early period. Among them we find the distinction between two radically different worlds (the world of facts and the world of norms), the normativity of legal science and the idea of validity as a binding force, based on the famous doctrine of the basic norm. These tenets and, especially, the use of a normative concept of validity prove to be incompatible with Kelsen's positivistic programme of a value‐free legal science. The science of law cannot state that legal norms are obligatory or binding without trespassing the limits of Kelsen's ideal of a legal science; on the other hand, it is possible to define the concept of a legal system without resorting to the basic norm. So, if Kelsen is to be regarded as a consequent positivist, the Kantian ingredients of his theory must be rejected and the descriptive concept of validity as membership must be substituted for the normative notion of validity as a binding force.

La normativité dans la Théorie Pure du Droit peut-elle se prévaloir d'arguments transcendantaux ?

In the "Pure Theory of Law", Kelsen's normativity thesis may appear to be based on transcendent al arguments. Some critics have concluded that it is. The author demonstrates, by drawing a parallel between Kant's concerna and Kelsen's, that a transcendental argument cannot have the same function in both endeavors and that its role in legal theory can only be a more modest one.

Le théorème de Gödel et la norme fondamentale de Kelsen

The famous Godel's theorem has mainly held the attention of logicians, epistemologists and philosophers. May it also bring a contribution to the thoughts of theorists of Law ? This appears in any case possible in the framework of theories, like that of Kelsen, which are working with the concept of systems of legal norms forming hierarchically an universal legal System, including the international law and ail the other minor legal systems. The main problem is then the validity of these different Systems of legal norms. Thus one may draw up a parallel with the Godel's theorem, which more particularly refers to the validity of systems of mathematical axioms forming also an hierarchical System. In order to well indicate that his Pure Theory of Law is limited to positive law, Kelsen has conceived a basic norm, which serves, on the theoretical level, to found the validity of the whole of the legal norms. The Godel's theorem does not imply whatever limitation of this kind. Other divergencies result from the materials upon which Godel and Kelsen have built their respective theories.

REVIEWS

Bailment. By N. E. Palmer.Remedies for Breach of Contract. By Hugh Beale.Legal Norms and Legal Science. A Critical Study of Kelsen's Pure Theory of Law. By Ronald Moore.Moral and Legal Reasoning. By S. J. Stoljar.The Politics of the U.S. Supreme Court. By Richard Hodder‐Williams.Kindesmisshandlung? By Dieter Giesen.Of Presbyters and Kings: Church and State in the Law of Scotland. By Francis Lyall.The Maritime Zones of Islands in International Law. By Clive R. Symmons.Oil Rigs: Law and Insurance (Some Aspects of the Law and Insurance Relating to Offshore Mobile Drilling Units). By Michael Summerskill.Cases and Materials on International Law. Second edition.Studies in Civil Procedure. Edited by Eric Gertner.Perspectives on Legal Aid—An International Survey. Edited by Frederick H. Zemans.Solicitors and the Wider Community. By David Podmore.

Ethical Non-Cognitivism and Kelsen's Pure Theory of Law

Ethical Non-Cognitivism and Kelsen's Pure Theory of Law

The Pure Theory of Law. By Hans Kelsen. Translated by Max Knight from Reine Rechtslehre, 2nd edition, 1960. (Berkeley: University of California Press, 1970. First published 1967. Pp. 356. $3.75, paper.) - What is Justice: Justice, Law, and Politics in the Mirror of Science. By Hans Kelsen. (Berkeley: University of California Press, 1971. First published 1957. Pp. 397. $16.00.)

The Pure Theory of Law. By Hans Kelsen. Translated by Max Knight from Reine Rechtslehre, 2nd edition, 1960. (Berkeley: University of California Press, 1970. First published 1967. Pp. 356. $3.75, paper.) - What is Justice: Justice, Law, and Politics in the Mirror of Science. By Hans Kelsen. (Berkeley: University of California Press, 1971. First published 1957. Pp. 397. $16.00.) - Volume 69 Issue 4

The Pure Theory of Law: Demythologizing Legal Thought

The Pure Theory of Law: Demythologizing Legal Thought