Kelsen rejects the general approach to law of looking at the purposes and functions, by arguing that all such matters are psychological or political matters. State University of New York Press. General jurisprudence can be broken into categories both by the type of question scholars seek to answer and by the theories of jurisprudence, or schools of thought, regarding how those questions are best answered.
Eventually, Kelsen accepted the criticism that the concept of a basic norm involves an infinite regress. Third, he discusses interpretation as it is to be understood as part of the science of law, as Kelsen has defined it as being 'purified' from the undue influences of politics, morals, and metaphysics.
According to him, a universal adherence is not necessary, rather, all that is necessary is a minimum adherence. The original terminology which was introduced in the first edition was already present in many of Kelsen's writings from the s, and were also subject to discussion in the critical press of that decade as well, before it was first published in For Kelsen, this is Kelsen s pure theory of law inevitable due to the relative primitiveness of international law in contemporary society.
Suppose, for example, that a new law is enacted by the California legislature. So there is no distinction between State and Law. One might think, rather, that to suppose for a particular positive-legal order simply that the historically first constitution identified on this occasion 'is to be obeyed' is instead to assume that a reason for obedience has already been established outside the legal order and beyond the ken of legal science.
In a longer view, it was a return to his youthful passion for philosophy.
He found equally tenable the view that the public international legal order is supremely valid and the view that each national or state legal order is—for itself, in a kind of 'solipsism'—supremely valid.
The Pure Theory, thereby characterizes this interpretation as possible, not necessary, and presents the objective validity of positive law only as conditional—namely conditioned by the presupposed basic norm.
Therefore, the legal sciences were to be normatively based in distinction from the physical sciences which were to be causally based. As a Positive Law: This guarantor cannot be other than a component of the representation, hence a legal proposition.
The Grundnorm is a norm which is not capable of deducation from any principles of the science of law. Such a norm is instead a moral or social norm posited by a legal organ who is not exercising their legal capacity.
Their logical separation should be incorporated into practice. Law and power[ edit ] Descriptively, the Pure Theory of Law has always been about power. Law is a norm of action Kelsen regards Jurisprudence as a normative science and not a natural science. However, the Pure Theory of Law was not to be subject to such influences.
Law and Nature[ edit ] In the first paragraph of Pure Theory of Law, Kelsen introduces his theory as being a theory of positive law. Be this as it may, the main worry lies elsewhere. The classes also cannot contradict, i. In fact, what Kelsen really offered us here is an invitation to provide a reductive explanation of the concept of legal validity in terms of some set of social facts, the facts that constitute the content of any given basic norm.
In that case, legal science would be seriously inadequate. One part of the problem lay in his starting point, the question 'Why should the law be obeyed? Each relatively 'higher' norm authorises someone an individual or an organ, primarily of the state to create further and relatively 'lower' norms.
The core subject matter of legal science, for Kelsen, is legal norms. To decide whether a statement is descriptive or normative, you need to look at its meaning. Kelsen insisted that, if social scientists wished to deal with law, they would have to take their concept of law from legal science—that is, from the Pure Theory of Law.
InKelsen relativised the idea of 'constitution', holding that each relatively higher legal norm is a 'constitution' in relation to any norm created under its authority. Hence, the denial of the relevance of moral considerations makes legal science sterile and useless, and the denial of the factual nature of law disconnects it from reality.
But in both cases, as, in fact, with any other normative system, the presupposition of the basic norm is logically required only of those who regard the relevant norms as reasons for their actions.
What has to be consistent in a dynamic order of norms is only the process of authorising. The classes also cannot contradict, i. Sphere of Validity of the Norms Since norms regulate human behavior, and human behavior takes place in time and space, norms are valid for certain time and for certain place.
At the same time there is also the understanding of law as being affected by the accumulated standing law which represents the decisions of the courts which in principle become part of the hierarchical representation of the pure theory of law. The work of a legal academic contains such descriptive statements.
For Kelsen, this is largely inevitable due to the relative primitiveness of international law in contemporary society. The ordering principle of an order of moral norms—and of an order of natural law, if one could exist—would be logical, as deduction.
It is likewise an illusion to think of a 'legal person', whether relating in fact to a number of real people or to a single real individual, as anything other than a fictional personification of a bundle of norms that are rights and duties pertaining to such people. Importantly, Kelsen allows for the legislative process to recognize the law as the product of political and ethical debate which is the product of the activity of the legislature before it becomes part of the domain of the static theory of law.Pure Theory of Law, much less his novel and related theory of the basis of international law, which is to be discussed in a separate volume.
7 Kelsen's fundamental philosophy of law. Hans Kelsen is considered to be one of the founding fathers of modern legal philosophy. But despite Kelsen's prominence as a legal theorist, his political theory has been mostly overlooked.
This book argues that Kelsen's legal theory, the Pure Theory of Law, needs to be read in the context of Kelsen's political theory. Further, Kelsen describes the nature of the jurist, explaining the science of law a Previous theories of legal positivism tend to revolve around the power of the sovereign.
Kelsen took things a different direction and put the authority of law in to followers of the law/5. Kelsen’s two most important books on the pure theory of law are the first edition of his Reine Rechtslehre, published in and recently () translated. The second edition, which Kelson published in (translated in ) is a considerably extended version of the first edition.
From its origin in to date, the pure theory of law of Hans Kelsen (), doubtlessly a leading law scientist of the 20'th century, is almost a lasting challenge to the renowned workers in the domain of jurisprudence (the science of law), but also the subject of ongoing critical.
Pure Theory of Law, much less his novel and related theory of the basis of international law, which is to be discussed in a separate volume. 7 Kelsen's fundamental philosophy of law was erected by .Download