Kelsen's Pure Theory of Law

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Topics: Law
HANS KELSEN (1881-1973)
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

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