The weak reading of authority in Hans Kelsen's pure theory of law

Law and Philosophy 19 (2):131 - 171 (2000)
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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.



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Authority and justification.Joseph Raz - 1985 - Philosophy and Public Affairs 14 (1):3-29.
The Purity of the Pure Theory.Joseph Raz - 1981 - Revue Internationale de Philosophie 35 (138):441.
The Purity of the Pure Theory.Joseph Raz - 1999 - In Stanley L. Paulson (ed.), Normativity and Norms: Critical Perspectives on Kelsenian Themes. Oxford University Press. pp. 441.
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