Lecture – Part I Notes
Like other legal positivists, Hans Kelsen attempts to “describe” the law separate and distinct from morality or ideology.
WHAT MAKES KELSEN A LEGAL POSITIVIST?
1. Kelsen’s theory is free from ideological issues, and no value judgments are made concerning the “legal system per se.” 2. Historical, sociological and moral issues are beyond the scope of Kelsen’s pure theory of law.
As such, Kelsen’s “Pure Theory” attempts to examine and define what law “is” outside the purview of these normative areas.
“The pure theory of law is a theory of positive law. As a theory it is exclusively concerned with the accurate definition of its subject matter. It endeavors to answer the question, “what is the law?” but not the question, “what ought it to be” It is a science and not a politics of law.” (Wayne Morrison, pg. 324) “Jurisprudence: From the Greeks to post-modernism.”
Is Kelsen a cold hearted scientist bent on developing a positive system per se devoid of humanism, attempting to strip away all that is social and moral about society?Interestingly, Kelsen addressed this question, and said no. His “model” building, according to the man himself is designed to highlight a species of human acts, namely valid norms affecting human behavior.
“to understand law in its pure structure we must strip law of its expressive dressing; law is a simple structure of coercion, a hierarchically organized system of (non-moral) norms laying out the conditions by which agents of the state are entitled (authorized) to enforce sanction.” (Morrison, pg. 3251).
THE GERMAN EXPERIENCE – RADBRUCH
During the early 1930’s, the German jurist Radbruch, prior to his transformation to later day natural law sentiments, seemed unable to strip away the trapping of historical determinism within the context of legal validity. Put simply, Radbruch encouraged the legal validity of the German Reich based not on a criterion of validity per se, but upon the notion of the historical destiny of the Third Reich. History, according to Radbruch, assigned to the Third Reich the right to claim that laws issued by the Reichstag are also right.So for Radbruch, at least at this juncture in history, legal validity or laws properly so called were also moral laws.
Kelsen, however, sought to sever the connection between historical determinism and the law. Kelsen believed that laws are made by men rather than discovered by man. By discovered we mean that man mysteriously has unearthed the historical blessing or determinism that makes law right. Most importantly, according to Kelsen, it is not a necessary condition that when man makes law, that law is also right or just. To this extent, you see how Kelsen is concerned with man’s ability to be subsumed by historical and political tides, and how he now asserts a detached positivism to delink prior links between justice and law, right and power, validity and law per se. It is at this juncture that the genesis of his “pure theory” begins to emerge. Kelsen asks the question, “what is the subject matter of jurisprudence? Law is a human creation, yet Kelsen is asking it participants to accept the law without further acknowledgment of either its genesis or normative foundations.
KELSEN’S PURE THEORY
Kelsen’s theory seeks to isolate that which makes law valid without reference to morality. It is this detachment that puts Kelsen into the legal positivist school.
For example, Kelsen sets up his theory by first making a fundamental distinction between the “prescriptive” and “descriptive” aspects of positive law. Unlike Benthan and Austin who sought to describe how a legal system works, Kelsen digs deeper into this theory seeking out a “prescriptive” dimension. By prescription, law should prescribe when certain conditions are met, that officials behave in a certain way.
KELSEN’S HIERARCHY OF LEGAL NORMS
Legal norms for Kelsen provide the...