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 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.



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