Hans kelsen was a european legal philosopher and teacher who emigrated to the united states in 1940 after leaving nazi germany. As part of the legal positivist separation of law and morality that he advocated, a hart. Legal positivism legal positivism is a theory about the nature of law, commonly thought to be characterized by two major tenets. The most important architects of contemporary legal positivism are the austrian jurist hans kelsen 18811973 and the two dominating figures in the analytic philosophy of law, h. Legality and legitimacy michel troper hans kelsens theory has, regretfully, been neglected in north america, except by a few legal philosophers. The main objective of hans kelsen in the pure theory of law is to. In keeping with his persistent legal positivism he answers the question what is justice. John austin, hans kelsen, and herbert hartdo not converge on many. Law, critical legal positivism constitutional law and international law, philosophy of law issues of justice, natural law, sociology causality and retribution, political theory democracy, socialism, bolshevism and critiques of ideology. Kelsen began his long career as a legal theorist at the beginning of the 20th century. Kelsens theory of grundnorm india law legal database. Legal positivism stanford encyclopedia of philosophy. He gained a worldwide reputation for his pure theory of law reine rechtslehrea. Hans kelsens pure theory of law and its doctrine of the grund norm has achieved a.
He published the first edition of the pure theory of law in 1934, and a second, expanded edition which i read in 1960. Kelsen, hart, and legal normativity openedition journals. Hans kelsen vienna school of jurisprudence positive law. Kelsen was a theorist and philosopher who renewed legal positivism and found new answers to the fundamental question of how law is to be constructed and understood. I have in mind is not, however, hans kelsen or his theory in particular. Pdf kelsens pure theory of law naveed hussain academia. According to kelsons pure theory of law, it must be free from ethics, morality, politics sociology, history etc it must be pure. The traditional legal philosophies at the time, were, kelsen claimed, hopelessly contaminated with. Hans kelsen on international law francois rigaux abstract kelsens monistic theory of law, according to which international and municipal law have the same subjectmatter, paved the way for the dominant contemporary doctrine. Hart 190792 and joseph raz, among whom there are clear lines of influence, but also important contrasts. This book argues that kelsen s pure theory of law needs to be read in the context of kelsen s political theory.
Hans kelsen, a great exponent of legal positivism kelsen is a systematic opponent of those who want to reduce the legal science to a chapter of sociology, economics, history or geography. It was at this time that professor hans kelsen of vienna university began to write the books on legal philosophy 1ich. Although he was not of angloamerican birth, the idea of purity of his account of law, his views on legal structure and on the general form that all laws took, and his theory of legal validity, have contributed much to the theories of legal positivism. Recently there have been two attempts to understand democracy as a source for the normativity that the pure theory assigns to law. A philosophical reading of legal positivism tel archives ouvertes. Dec 08, 2014 hans kelsen was an austrian legal theorist, who worked in germany until the rise of the nazi party, and then in the usa. Kelsen used this word to denote the basic norm, order, or rule that forms an underlying basis for a legal system. Hans kelsen s argument from relativism this paper examines the conceptual relationship between legal positivism and human rights. There are familiar questions connected with explaining legal.
Hans kelsen and the bindingness of supranational legal norms by richard latta under the direction of professor andrew altman abstract the pure theory of law is a positivist legal theory put forward by hans kelsen. Kelsens theory and discuss the middleway approach he adopts between the traditional theories of natural law and legal positivism. Legal positivism oxford academic journals oxford university. It also has an extensive appendix that discusses the pure theory in comparison with the law of nature, positivism, historical natural law, metaphysical dualism and scientificcritical philosophy. In his essay the naturallaw doctrine before the tribunal of science, published originally in 1949. Indeed, hans kelsen remains an essential point of reference in the world of legal thought. In the following two sections, i attempt to give a general account of the legal theories of gustav radbruch and hans kelsen, with an emphasis on the question of legal. This essay first sets out the epistemological basis of the pure theory in cognition of the law, that is, on how exactly law is perceived and recognized. Kelsen is most famous for his studies on law and especially for his idea known as the pure theory of the law. Legal positivism is the thesis that the existence and content of law.
Hans kelsen and the bindingness of supranational legal norms. Overview hans kelsen was an austrian legal theorist, who worked in germany until the rise of the nazi party, and then in the usa. The theory is pure because it separates jurisprudence. This article focuses on issues relating to legal normativity, emphasizing the way these matters have been elaborated in the works of kelsen and hart and later commentators on their theories. According to kelsen law is a normative science jurisprudence is the knowledge of norms. The great trend of analytical jurisprudence, going back to bentham and austin, has reached in kelsen s work a. One of the main reasons for the neglect of kelsens political theory is that it is considered to be at odds with his legal theory, and. International legal realism as a theory of uncertainty, 58 harv. Summary of hans kelsens pure theory of law hugh mccarthy. Hans kelsen was one of the most significant legal scholars of the 20th century. First, in section 2, the author offers a view regarding the nature of law and legal normativity focusing on kelsen s work at least one reasonable reading of it.
Vol 4 the western australian jurist 285 hans kelsens theory and the key to his normativist dimension kendra frew i introduction writers have both praised and criticised hans kelsens work, however all would agree that he is a theorist to be reckoned with. Once we reject the denial of the legal quality of international law, we have to acknowledge, in kelsen s view, that all national legal systems are subordinate parts of one global legal system and to support the further institutionalization of that legal system. Found at these bookshops searching please wait originally published in hebrew in by manges press. Hans kelsen was an austrian lawyer and philosopher. Analytical jurisprudence deontological ethics interpretivism legalism legal moralism legal positivism legal realism libertarian theories of law natural law paternalism utilitarianism virtue. Paulson legal positivism in the jurisprudential tradition of the european continent is characterised by what might be called the facticity thesis. While kelsen is of course defending the separation principle, his position represents a wholesale rejection of naturalism. Kelsens pure theory of law is, no doubt, the outstanding achievement of our time in legal theory.
Kelsen s legal cosmopolitanism argues that there is no good jurisprudential reason to deny that international law is real law. Hart, and many other legal theorists for legal normative systems kelsen called the basic norm grundnorm oing ssay his on orget utline elsen heory irst articularly he ature. Translation from the second german edition by max knight. In the following two sections, i attempt to give a general account of the legal theories of gustav radbruch and hans kelsen, with an emphasis on the question of legal validity. But despite kelsen s prominence as a legal theorist, his political theory has been mostly overlooked. He was the author of the 1920 austrian constitution, which to a very large degree is still valid today. A norm of law is simply a preposition in hypothetical from.
Hart, and many other legal theorists of the past century1 is the idea that law is a normative system, and that any theory about the nature of law must focus on its normativity. He published the first edition of the pure theory of law in 1934, and a second, expanded edition which i read in 1960 the theory is pure because it separates jurisprudence from other disciplines like ethics, politics and psychology. Introduction the socalled naturallaw doctrine is a constant target of criticism by hans kelsen. Apr 24, 2019 found at these bookshops searching please wait originally published in hebrew in by manges press. This edited collection commences with a comprehensive introduction which establishes the character of kelsens critical engagement as a general critique of natural law combined. Henry cohen hans kelsen 18811973 was a leading germanamerican legal positivist. Pdf the theory of legal positivism has been much discussed over the. Hans kelsens theory has, regretfully, been neglected in north america, except by a few legal philosophers. This book argues that kelsens pure theory of law needs to be read in the context of kelsens political theory. Basic norm or the grundnorm is a concept created by hans kelsen, a jurist and legal philosopher. This collection of new essays takes kelsens pure theory of law as a stimulus, aiming to move forward the debate on several central issues in contemporary jurisprudence. Focusing on the theoretical foundations of kelsen s legal positivism and weber s sociology of law, and guided by the conceptual frame of the juridicopolitical, the contributors to this.
Legal positivism is a general and descriptive theory of law of the type advanced by scholars like john austin, 4 hans kelsen, 5 alf ross, 6 h. Jurisprudence pure theory of law by hans kelsen part 2. Possibly the most influential jurisprudent of the twentieth century, hans kelsen 18811973 was legal adviser to austrias last emperor and its first republican government, the founder and permanent advisor of the supreme constitutional court of austria, and the author of austrias constitution, which was enacted in 1920, abolished during the. Forty years after his death, hans kelsen 18811973 remains one of the most discussed and influential legal philosophers of our time. This classic work by the important austrian jurist is the fullest exposition of his enormously influential pure theory of law, which includes a theory of the state. His work has been studied wherever legal theory is studied. The austrian philosopher and jurist named han kelsen proposed the pure theory of law. Hans kelsen s farewell address as an active member of the university of california faculty is a fitting introductory chapter to the collection of fifteen essays which comprise his latest book. For him, the legal science is an autonomous science, which must operate with its own methods and with absolute fidelity to their prisms of observation. General theory of law and state, by hans kelsen, translated. Natural law, hans kelsen, thomas aquinas, aristotle. Once we reject the denial of the legal quality of international law, we have to acknowledge, in kelsens view, that all national legal systems are subordinate parts of one global legal system and to support the further institutionalization of that legal system.
The great trend of analytical jurisprudence, going. Kelsen was born in prague, czechoslovakia, on october 11, 1881. His major works on legal positivism were the general theory of law and state and the pure theory of law. Hans kelsen on international law francois rigaux abstract kelsen s monistic theory of law, according to which international and municipal law have the same subjectmatter, paved the way for the dominant contemporary doctrine. Hans kelsen 1881 1973, the main name of legal positivism. The theory is pure because it separates jurisprudence from other disciplines like ethics, politics.
Kelsen s pure theory of law is, no doubt, the outstanding achievement of our time in legal theory. A landmark in the development of modern jurisprudence, the. Hans kelsen 18811973 biographical note and bibliography. The pure theory of law stanford encyclopedia of philosophy. Pdf legal positivism, conventionalism, and the normativity of law. Hans kelsen was an austrian legal theorist, who worked in germany until the rise of the nazi party, and then in the usa. Kelsens legal cosmopolitanism argues that there is no good jurisprudential reason to deny that international law is real law. Pdf hans kelsen pure theory of law majd rashyd academia. Hans kelsen and the natural law tradition provides the first sustained examination of hans kelsens critical engagement, itself founded upon a distinctive theory of legal positivism, with the natural law tradition. It offers the first comprehensive interpretation of the pure theory that makes systematic use. Hans kelsens argument from relativism this paper examines the conceptual relationship between legal positivism and human rights. Thus, no laws can be regarded as expressions of higher morality or higher principles to which people can appeal when they disagree with the laws.
Request pdf reconciling legal positivism and human rights. The precise question before the supreme court was whether the high courts had jurisdiction under article 98 of the constitution of. This edited collection commences with a comprehensive introduction which establishes the character of kelsen s critical engagement as a general critique of natural law combined. This article will summarize kelsensopure theory of law, comment on his view of customary court. The idea of a pure theory of law was propounded by the formidable austrian jurist and philosopher hans kelsen 18811973 see the bibliographical note. Hans kelsens farewell address as an active member of the university of california faculty is a fitting introductory chapter to the collection of fifteen essays which comprise his latest book. This edited collection commences with a comprehensive introduction which establishes the character of kelsens critical. Hans kelsens pure theory of law in the land of the legal realists 355 writings tend to be political theorists, and to this day, no u. Hans kelsen retains the imperativalists monism but abandons their reductivism. Hans kelsen is considered to be one of the founding fathers of modern legal philosophy. But despite kelsens prominence as a legal theorist, his political theory has been mostly overlooked.
October 11, 1881 april 19, 1973 was an austrian jurist, legal philosopher and political philosopher. Hans kelsen and the bindingness of supranational legal. Kelsen lives european journal of international law. Hans kelsen was a legal theorist, best known for his writings on international law and for his creation of the concept of a constitutional court. Legal positivism is the legal philosophy which argues that any and all laws are nothing more and nothing less than simply the expression of the will of whatever authority created them. Hans kelsen and the natural law tradition provides the first sustained examination of hans kelsen s critical engagement, itself founded upon a distinctive theory of legal positivism, with the natural law tradition. International journal of law and legal jurisprudence studies, volume 1, issue 6 6 john austins analytical jurisprudence and legal positivism john austin 17901859 was a prominent british legal philosopher who takes the credit for formulating the first systematic alternative to both natural law theories of law and utilitarian.