I LAW AND NATURE i. The "Pure" Theory The Pure Theory of Law is a theory of positive law. It is a theory of positive law in general, not of a specific legal ...

Three paradigms of legal positivism -- The pure theory of law : science or political theory? -- Kelsen's principles of legality -- Kelsen's theory of democracy : reconciliation with social order -- Democratic constitutionalism : Kelsen's theory of constitutional review -- Kelsen's legal cosmopolitanism -- Conclusions : the pure theory of law and contemporary positivism.

It is good to have this fine English translation of the second German edition of Kelsen's Reine Rechtslehre, which has heavily influenced so much contemporary thought on jurisprudence and the philosophy of law. Reading Kelsen now one is struck by the stilted and naïve positivism that pervades his thought. At the same time, one is also impressed by the clarity that he brings to what is normally a very muddled area. There is a bold statement of the "pure" (...) class='Hi'>theory, a sharp distinction between the legal and the moral orders, a reiteration of the "dualism" of the is and the ought, and a defense of legal norms as the object of the science of law. While Kelsen's quasi-dogmatic pronouncements can provoke disagreements at almost every stage of his argument, the book is certainly one which must be directly encountered by any serious student of the philosophy and theory of law.—R. J. B. (shrink)

Most contemporary legal philosophers tend to take force to be an accessory to the law. According to this prevalent view the law primarily consists of a series of demands made on us; force, conversely, comes into play only when these demands fail to be satisfied. This book claims that this model should be jettisoned in favour of a radically different one: according to the proposed view, force is not an accessory to the law but rather its attribute. The law is (...) not simply a set of rules incidentally guaranteed by force, but it should be understood as essentially rules about force. The book explores in detail the nature of this claim and develops its corollaries. It then provides an overview of the contemporary jurisprudential debates relating to force and violence, and defends its claims against well-known counter-arguments by Hart, Raz and others. This book offers an innovative insight into the concept of Pure Theory. In contrast to what was claimed by Hans Kelsen, the most eminent contributor to this theory, the author argues that the core insight of the Pure Theory is not to be found in the concept of a basic norm, or in the supposed absence of a conceptual relation between law and morality, but rather in the fundamental and comprehensive reformulation of how to model the functioning of the law intended as an ordering of force and violence. (shrink)

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. (shrink)

This short paper addresses a well‐known difficulty in the Pure Theory of Law: the definition of a legal wrong. Kelsen was unable to offer a suitable one, critics say. I agree. But the critics misdiagnosed the problem, and prescribed for it a fruitless solution. The reason for Kelsen’s failure, the critics say, was that he thought the law consists only of sanction‐stipulating norms addressed to officials, and does not comprise duty‐imposing norms addressed to citizens. But the critics are (...) wrong, exegetically as well as substantively. Kelsen did not—and indeed could not—deny that there are such duty‐imposing norms; and it is not the case, in any event, that the admission that there are such norms would enable us to explain the notion of a legal wrong. Kelsen failed to provide an adequate characterization of the notion of a legal wrong, yes, but for a different reason. (shrink)

Hans Kelsen is considered to be one of the foremost legal theorists and philosophers of the twentieth century. His writing made an important contribution to many areas, especially those of legal theory and international law. Over a number of decades, he developed an important legal theory which found its first complete exposition in Reine Rechtslehre, or Pure Theory of Law, the first edition of which was published in Vienna in 1934. This is the first English translation (...) of that work. It covers such topics as law and morality, the legal system and its hierarchical structure, the identity of law and state, and international law. (shrink)

Volume 10, Issue 1, March 2019, Page 118-120.

Hans Kelsen’s (1881-1973) teaching in law covers studies in such topics as the general theory of law, legal philosophy, the general teaching of law, constitutional, administrative and international law. He was also the author of the Austrian Constitution, designed in 1920. Among many of his publications is the Comment of the Charter of the United Nations, published in 1950 in New York City. Among numerous Hans Kelsen’s publications, translated into many languages, the best known, which has made the greatest (...) impact, is his book ‘Pure Theory of Law’, first published in 1934, and the second edition appeared in 1960 together with attachment ‘The Justice Problem’. In particular, a comprehensive legal and policy issue in 1929 appears in Kelsen’s work ‚On the Nature and Value of Democracy‘. Pure Theory of Law is a theory of positive law, the science that reads positive law only into normative sense. Kelsen eliminates any non-normative approach. His science of law is based on the legal positivism and leads to the neutrality of government valuables and indifferent provisions of individual. Kelsen disclaims any ‘over-positive law’ (Recht präpositives), as well as from the natural law. Therefore, the Pure Theory of Law fits for totalitarian and authoritarian regimes. (shrink)

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...

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. (shrink)

Forty years after his death, Hans Kelsen (1881-1973) remains one of the most discussed and influential legal philosophers of our time. This collection of new essays takes Kelsen's Pure Theory of Law as a stimulus, aiming to move forward the debate on several central issues in contemporary jurisprudence. The essays in Part I address legal validity, the normativity of law, and Kelsen's famous but puzzling idea of a legal system's 'basic norm'. Part II engages with the difficult issues (...) raised by the social realities of law and the actual practices of legal officials. Part III focuses on conceptual features of legal systems and the logical structure of legal norms. All the essays were written for this volume by internationally renowned scholars from seven countries. Also included, in English translation, is an important polemical essay by Kelsen himself. (shrink)

Any correct assessment of Hans Kelsen's conception of Ought must take into account, first, that Kelsen's theory evolved over some 60 years which saw several major changes of its fundamentals; and second, that the Pure Theory must basically be understood as a meta-theory of institutionalised legal science. With these provisos, Kelsen's explanation of the Ought oscillates between two extremes: at one extreme, the legal Ought is just a formal semantic marker delimiting the realm of the law; (...) at the other, the legal Ought might be conceived of as 'depersonalised will'. Kelsen's most profound and fertile explanation, however, identifies the legal norm with the normative judgment of legal science, while the Ought plays the role of a category (in a Kantian sense) vesting the judgment with normative force. (shrink)

Authority qua empowerment is the weak reading of authority in Hans Kelsen's writings. On the one hand, this reading appears to be unresponsive to the problem of authority as we know it from the tradition. On the other hand, it squares with legal positivism. Is Kelsen a legal positivist?Not without qualification. For he defends a normativity thesis along with the separation thesis, and it is at any rate arguable that the normativity thesis mandates a stronger reading of authority than that (...) modelled on empowerment. I offer, in the paper, a prima facie case on behalf of a stronger reading of authority in Kelsen. I go on to argue, however, that the textual evidence weighs heavily in favour of the weak reading. Both nomostatics and nomodynamics are pervasive points of view in the Pure Theory of Law, and both reflect species of empowerment as the endpoint of Kelsen's reconstructions. (shrink)

The objective of the article is to present Hans Kelsen’s basic norm concept that allows the combination of the two relevant dimensions in relation to juridical science, namely the positivity and validity of law. The role of the concept of basic norm is presented by the author of the Reine Rechtslehre with reference to Kant as a concept enabling formulation of an answer to the question “To what extent is it possible to interpret certain facts as objectively valid legal norms?” (...) The epistemological problem of the object of cognition of juridical science is connected with the issue of normativity. According to Kelsen, only the assumption of a certain nonpositive hypothetical norm regulating the legislation of norms of a given system enables normative interpretation of certain facts. The basic norm authorizes the way of issuing norms, yet not their content. The structure of the legal order creates a hierarchical system in which the higher category norms delegate the law-making power to create the lower category norms. The legal system creates a dynamic system of norms. (shrink)

The essence and basic methods of the pure theory -- The state and the law -- Law and its "others" : natural law, morality and social policy -- Constitution and normative hierarchy -- The basic norm and efficacy of the legal system -- The rule of law -- Conclusion -- Index.

The papers in this volume focus on two central issues in the philosophy of law, the relationship between law and morality, and crime and punishment. In the essay that gives the title to this volume, it is argued that, although in many legal systems there are in fact significant connections between law and morality, these connections are not conceptually or logically necessary. They depend on various social practices. Ronald Dworkin's famous attempt to undermine the legal positivist's separation of law from (...) morality is rejected, and it is argued that Dworkin's own positive theory of law may indeed be quite compatible with certain versions of legal positivism. Other essays explore the notion of a wicked legal system, the rule of law, and various perspectives on the nature of law. The essays on crime and punishment discuss the theory and practice of punishment. They extend the work done in the author's earlier book, "Crime, Guilt and Punishment". They reject a purely retributive justification of punishment, in spite of the increasing sophistication in its recent formulations. (shrink)

This analysis of Hans Kelsen's international law theory takes into account the context of the German international legal discourse in the first half of the twentieth century, including the reactions of Carl Schmitt and other Weimar opponents of Kelsen. The relationship between his Pure Theory of Law and his international law writings is examined, enabling the reader to understand how Kelsen tried to square his own liberal cosmopolitan project with his methodological convictions as laid out in his (...) Pure Theory of Law. Finally, Jochen von Bernstorff discusses the limits and continuing relevance of Kelsenian formalism for international law under the term of 'reflexive formalism', and offers a reflection on Kelsen's theory of international law against the background of current debates over constitutionalisation, institutionalisation and fragmentation of international law. The book also includes biographical sketches of Hans Kelsen and his main students Alfred Verdross and Joseph L. Kunz. (shrink)

This article defends a pure functionalist theory of territorial jurisdiction according to which a state’s moral right to rule over a territory rests on its present moral performance as a freedom‐enabling institutional structure. A common objection against functionalist theories is that they cannot explain why it matters that one particular state has exclusive jurisdiction over a certain territory. This deficiency is often associated with the annexation challenge, which is supposed to show that functionalist theories cannot deal adequately with (...) cases of annexation. Against this line of criticism, I argue that the pure functionalist justification of the right to rule is capable of tackling challenges related to particularity and annexation. First, the pure functionalist theory explains why it is important that one particular state rules over a given territory. It also tells us what set of laws and what government we should comply with. Second, the pure functionalist justification of the right to rule entails sufficient conceptual resources to account for the wrongdoing involved in annexation. Although the theory deems past wrongs irrelevant for the justification of the right to exercise jurisdiction on a territory, it is adequately sensitive to historical injustice. (shrink)

Kant has made an attempt in his Doctrine of Law to show that the principles of natural Law are a priori principles of pure practical reason. He considers this a necessary step towards establishing the obligating force of positive legislation within a legal system. It is not obvious, however, that Law, which recognizes external coercion as a possible incentive for the compliance with its duties, can be reconciled with pure practical reason, which through the categorical imperative commands that (...) one fulfill duty from the idea of duty and so independently of inclination. Accordingly, it is not clear that there is a systematic and necessary connection between Law and morality for Kant and that he has succeeded in his overall objective of justifying positive Law. ;My dissertation is concerned with the question of how, according to Kant, pure practical reason can allow for juridical legislation, a legislation which admits of an incentive other than the idea of duty for the fulfillment of certain duties. I present criticisms of interpretations according to which Law with its external character cannot be reconciled with morality for Kant. I also discuss some interpretations according to which Law with its duties and legislation is justifiable from the point of view of pure practical reason, either as directly derivable from the categorical imperative or as a means for the realization and protection of the individual's moral freedom. I argue that such accounts do not succeed in explaining the possibility of external coercion for pure practical reason. I do maintain, however, that Law is reconcilable with pure practical reason for Kant, and I offer an explanation of how this is so: an examination of the different classes of duties shows that only juridical duties, or perfect duties to others, are such that reason must recongnize for them a kind of constraint other than free self-constraint and therefore must acknowledge the possibility of juridical legislation for these duties. (shrink)

Hans Kelsen is considered by many to be the foremost legal thinker of the twentieth century. During the last decade of his life he was working on what he called a general theory of norms. Published posthumously in 1979 as Allgemeine Theorie der Normen, the book is here translated for the first time into English. Kelsen develops his "pure theory of law" into a "general theory of norms", and analyzes the applicability of logic to norms to (...) offer an original and extreme position which some have called "normative irrationalism". Examining the views of over 200 philosophers and legal theorists on law, morality, and logic, and revising several of his own earlier positions, Kelsen's final work is a mandatory resource for legal and moral philosophers. (shrink)

Hans Kelsen is renowned in the world of legal philosophy as one of the most important legal scholars of the 20th century and his most important work which brought him this renown, Pure Theory of Law, is therefore ‘world famous’. However, he is less well known as a legal pacifist and his main writings on law and peace, such as Peace through Law, are very rarely studied and almost never considered in relation to his Pure Theory (...) of Law. Even the more recent studies of Kelsen’s theory of democracy, which increased familiarity with Kelsen as an advocate of democracy and actually looked at his political work in the light of the Pure Theory of Law, contain almost no systematic or critical consideration of the value of peace, although both Kelsen’s legal theory and his theory of democracy at least give cause for this. Whereas other studies have already made the connection between the concepts of law and democracy in Kelsen’s work, this thesis concentrates on the concepts – also closely connected in his work – of law and peace. With this new approach this thesis hopes to contribute to a re-evaluation of Kelsen’s positivist legal philosophy by showing that the undervalued yet essential aspect of his legal pacifism can be understood as the tacit, ethical meaning of the Pure Theory of Law. (shrink)

This paper derives a mathematical expression giving the development of the probability of a scientific hypothesis with the number of confirming tests, as determined by Bayes's theorem, in a special case in which all the tests are "independent" of one another. The simple expression obtained shows clearly how the various factors influence the growth of the probability. The result is used to set a numerical lower bound on the probabilities representing the a priori beliefs of humans in generalizations that become (...) accepted. By making a comparison with the predictions of a "logical atomic" model in the case of physical laws, it is argued that humans have significant a priori "knowledge" in a weak sense. (shrink)

The Identity Theory of properties is an increasingly popular metaphysical view that aims to be a middle way between pure powerism and pure categoricalism. This paper’s goal is to highlight three major difficulties that IDT should address in order to be a plausible account of the nature of properties. First, although IDT needs a clear definition of the notion of qualitativity which is both adequate and compatible with the tenets of the theory, all the extant proposals (...) fail to provide such a definition. Second, the suggested definitions of qualitativity are characterised by a metaphysical ‘neutrality’ that threatens to trivialise the important metaphysical debate regarding the question whether properties confer by themselves dispositions on their bearers or need the ‘assistance’ of laws of nature to do that. Finally, none of the extant alternative understandings of the core identity-claim of IDT can adequately meet the objection that the claim in question is unintelligible. (shrink)