Kelson's Pure Theory of Law

Only available on StudyMode
  • Download(s) : 407
  • Published : February 5, 2013
Open Document
Text Preview
Abstract.

This paper deals with the basic causes of numerous - often extremely negatively intoned - critical estimations said on the account of Kelson's pure theory of law and exposes essential properties of certain phases of its development; point to the contribution of Merkl and Verdross to the making of pure theory of law and to the main determinants of Kelsen's attempts to formalize jurisprudence (the science of law) for the purpose of creating conditions for exact and objective study of positive law; analyzes the meaning and scope of Kelsen 's normativisms and provides his views of further making of the pure theory of law. Aim and objectives of the research paper:

The aim of theory of law is to reduce chaos and multiplicity to unity. Legal theory is a science and not volition. It is knowledge of what the law ought to be. Law is a normative and not a natural science. As a theory of norms legal theory is not concerned with the effectiveness of the legal norms. A theory of law is formal, a theory of the way of ordering,changing concepts in a specific way. The relation of legal theory to a particular system of positive law is that of possible to actual law. Research question:

1. The Concept of Law and the Doctrine of the Reconstruc¬ted Legal Norm 2. Two statements of which one affirms the validity of a norm prescribing that men ought 3. To behave in a certain way, and the other the validity of a norm prescribing that men ought not to behave in this way. 4. To find the just norms of human behavior in the nature of man, particularly in his reason. 5. Overcoming the Dualism of Legal Theory

6. The Legal System and its Hierarchical Structure

Introduction

From its origin in 1911 to date, the pure theory of law of Hans Kelsen (1881-1873), doubtlessly a leading law scientist of the 20'th century, is almost a lasting challenge to the renowned workers in the domain of jurisprudence (the science of law), but also the subject of ongoing critical settling of accounts and heated disputes. In the greatest number of cases, however, numerous critical objections said on the account of Kelsen's views could be, in keeping with a suitable remark of Alfred Verdross, qualified as misunderstandings and, accordingly, rejected. Kelsen's troubles with the law scientists, according to the claim of Radomir D. Lukic, comes from the fact that he was a "philosopher-law scientist, but they were only law scientists. He wanted to raise them to the level of philosophy, but they were not able for that.” In the same context, Lukic also remarks that, in fact, it seems that nobody (including himself while he was young) understood Kelsen enough, did not dive to the depth of his thought to be able to successfully and groundedly criticize him. No matter how much, basically correct and in addition witty, the quoted explanation provided by Lukic certainly demands some supplements and explanations, that is, appropriate preciseness. Namely, Lukic does not provide an answer to the question what the greatness and significance of Kelsen's work consists of and how it is possible that it is that much denied, very often from quite different, mutually opposing points of view, and that his author is at the same time considered the greatest law theoretician of recent times4 In that sense, its seems that, first of all, it should be stressed that Kelsen's teaching is of primarily methodological character and that it makes a set of programming starting points established even in his first systematic work published in 1911 under the title "Hauptprobleme der Staatsrechtslehre", Tiibingen, Verlag von lCE. Mohr 1911, based upon which essential determinations of this law doctrine were then continuously worked out, shaped and modified over several decades. The aforementioned circumstance unambiguously points to the conclusion that Kel¬sen's theory of law is not any completed and rounded off teaching, but - as Robert Walter, present...
tracking img