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 ...

One of the leading legal philosophers of this century, Kelsen published this short treatise in 1934, when the neo-Kantian influence on his work was at its zenith. An earlier, "constructivist" phase had been displaced by his effort to provide something approximating a neo-Kantian foundation for his theory. If this second phase represents the Pure Theory of Law in its most characteristic form, then the present treatise may well be its central text. And of Kelsen's many statements of (...) the Pure Theory, this one is surely the most accessible. Topics covered include the legal norm and Kelsen's normativity thesis, law and morality, the role of ideology, the concept of the legal person, legal interpretation, the identity of law and state, and the theory of international law. Among the appendices is an annotated bibliography of secondary literature on Kelsen. (shrink)

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)

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)

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)

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)

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)

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)

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)

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)

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

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.

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)

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 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...

We present a model of similarity‐based retrieval that attempts to capture three seemingly contradictory psychological phenomena: (a) structural commonalities are weighed more heavily than surface commonalities in similarity judgments for items in working memory; (b) in retrieval, superficial similarity is more important than structural similarity; and yet (c) purely structural (analogical) remindings e sometimes experienced. Our model, MAC/FAC, explains these phenomena in terms of a two‐stage process. The first stage uses a computationally cheap, non‐structural matcher to filter candidate long‐term memory (...) items. It uses content vectors, a redundant encoding of structured representations whose dot product estimates how well the corresponding structural representations will match. The second stage uses SME (structure‐mapping engine) to compute structural matches on the handful of items found by the first stage. We show the utility of the MAC/FAC model through a series of computational experiments: (a) We demonstrate that MAC/FAC can model patterns of access found in psychological data; (b) we argue via sensitivity analyses that these simulation results rely on the theory; and (c) we compare the performance of MAC/FAC with ARCS, an alternate model of similarity‐based retrieval, and demonstrate that MAC/FAC explains the data better than ARCS. Finally, we discuss limitations and possible extensions of the model, relationships with other recent retrieval models, and place MAC/FAC in the context of other recent work on the nature of similarity. (shrink)

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 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)