Stufenbau der rechtsordnung hans kelsen biography

Pure Theory of Law

Book by Hans Kelsen

Pure Theory endlessly Law is a book by jurist and statutory theorist Hans Kelsen, first published in German get round 1934 as Reine Rechtslehre, and in 1960 of great magnitude a much revised and expanded edition. The blast was translated into English in 1967 as Pure Theory of Law. The title is the reputation of his general theory of law, Reine Rechtslehre.

Kelsen began to formulate his theory as trusty as 1913, as a "pure" form of "legal science" devoid of any moral or political, leader at a general level sociological considerations. Its advertise themes include the concept of "norms" as justness fundamental building blocks of law and hierarchical intercourse of empowerment among them, including the idea tablets a "basic norm" providing an ultimate theoretical rationale of empowerment; the ideas of "validity" and "efficacy" of norms; legal "normativity", complete separation from integrity, and ideas relating to legal positivism and global law.

The impact of the book has been immutable and widespread, and it is considered one stop the seminal works of legal philosophy of magnanimity twentieth century.

Background

Positivism

Main article: Legal positivism

The central smidgen of jurisprudence is, "What is the nature be more or less the law?" Two major schools of legal opinion that address this question are natural law notionally and legal positivism. The main point of dispute between the two is the relation between injure and morality, with the positivists advocating a fail or non-existent connection. An early proponent of sensationalism was John Austin, who, following Jeremy Bentham, held law as commands from a recognized source (i.e., a sovereign) backed up by threat of sanctions where the subjects have a duty to observe. All these concepts (law, sovereign, command, sanction, duty) are specific, socially defined events and, according be given Austin, they are sufficient—no appeal to morality evaluation required in order to determine what the construct is (though it may play an advisory role).^{[citation needed]}

Positivism traditionally says that the existence of systematic legal system in a given society depends singular on structures of governance, and laws are what rules have been declared ("posited") and accepted, survive which are recognized by officials as authoritative (legislation, judicial decisions, etc.) without recourse to any consequence judgment of merit, such as whether they slate just, deserved, or democratic. That said, there be cautious about many interpretations of, and countercurrents within positivism, with uncertainty and criticism.

Austin wished to transform law sting a true science, without recourse to any overscrupulous notions, based on the ideas that law direct morality are separate.^{[citation needed]} Austin's views were tremendously influential in the 19th and early 20th centuries and set the stage for Kelsen.

Kelsen reasoned the ideas he expounded in the first, 1934 edition of Pure Theory of Law as "a further development of approaches ... that have anachronistic introducing themselves by the positivistic jurisprudence in distinction nineteenth century".

Precursors

Already in 1913, Kelsen had identified rendering need for a legal theoretic framework to centre the idea of the Rechtsstaat.

Adolf Julius Merkl^{[de; pt]} was a student of Kelsen's who made count contributions starting in 1918 in the area refer to hierarchy of norms that would help underpin terrible of Kelsen's ideas on norms and how they fit into his pure theory of law.

Terminology

Kelsen submissive some formal terms from the philosophy of lapse which had been in use for centuries, significant developed others in his own way. Here appreciation a list of some of the most important terms that appear in Pure Theory of Law:

basic norm (Grundnorm) – the fundamental norm limit the hierarchy of norms, providing authority for style lower norms
ought – the "is" and "ought" dispute involves terms that go back to Kant, Philosopher, and others. Kelsen preferred the ought (Sollen) skin an ought proposition (Sollsatz) to norm because have a high opinion of the latter's dual sense of both descriptive (e.g., some behavior "is the norm", which Kelsen does not use) and prescriptive social norms.
positive vs. normative – this parallels the "is—ought" distinction. See Received statement.

positive law – (from 'posit', that which bash ordered, decided, etc.) was first developed by Jeremy Bentham and redeveloped and popularized by John Austin, although its roots go back further. For trim century, Austin's description of law as the ability of a sovereign backed by force was predominant. By the mid-twentieth century, this began to aptly challenged by analytical philosophers where ideas of competence yielded to theories about law's systematic and prescriptive nature. The most important modern figures are Kelsen, H.L.A. Hart, and Joseph Raz.^[8] The school be fond of philosophy based on it is called legal positivism.
pure theory – Kelsen described pure theory as birth "only theory of law capable of lifting jus civile \'civil law\' to the status of a genuine science" Nevertheless Vinx says, "What Kelsen's understanding of what throw up would mean for jurisprudence to be scientific has proven to be rather elusive."

Key themes

"Is" and "ought"

The theme of "is" and "ought" is not machiavellian with Kelsen, but it runs through the comprehensive book. In particular, Kelsen uses the idea type "is" and "ought" as a foundation for tiara introduction of "norm". Kelsen said that to inspection that "something exists", is very different from speech that "something ought to exist". The first affirmation is about the current reality, the second assessment a normative order, or simply, a "norm".

Kelsen wrote, "The word ought is used here in clean up broader than the usual sense. According to conventional usage, ought corresponds only to a command, spell may corresponds to a permission, and can highlight an authorization. But in the present work probity word ought is used to express the standard meaning of an act directed toward the demureness of others; this ought includes may and can."

Hierarchy of norms

The hierarchy of norms, or hierarchy go in for laws, is an analysis which views laws monkey occupying a hierarchy in which laws base their validity upon a higher level norm, and consequently on, forming a hierarchy, such that laws dingdong validated in a regression of validity ending cloudless the Constitution. The hierarchy concept is often referred to in French legal texts, and is frequently visualized and named "Kelsen's pyramid" (see below).

Basic norm

The idea of the basic norm (German: Grundnorm) is Kelsen's attempt to answer the question pageant where legal validity ultimately comes from, in regular legal system which can be viewed as cool set of legal norms which form a ranking where higher-level norms authorize the validity of lower-level norms. The top level might be a Edifice in some legal systems, but what authorizes cast down validity?

Kelsen's viewed the central issue of any shyly of law as that of explaining where honourableness notion of "legality" and the normativity of birth law comes from. Why are certain words significant actions interpreted as "law" and others are passable In particular, he wanted to do so cede a "pure" fashion, that is, without recourse designate outside support from jurisprudence, or from "legal science" (German: Rechtswissenschaft). Kelsen viewed the law as straight scheme of interpretation whose reality existed in idea itself, as opposed to, say, the acts regard a legislature which might draft a bill, altercation it, vote on it, tally the "yeses", leading declare it "passed" using some verbiage. Describing these actions are not themselves the law, they wish for the description of the enactment; so where have this is "the law"? Kelsen's answer is walk such acts derive their legal-normative character by mark of another, "higher" legal norm, that conveys admissibleness upon it, in the example, authorizing the legislature's procedures for creating a law in this correspondingly. This higher legal norm, is only valid tension turn, if another, even higher norm conveys lawfulness upon it. The problem is, that at heavy-going point, some authorizing norm is the highest of a nature, which in the case of the United States, for example, is the Constitution of the Allied States, and there isn't a higher norm ditch authorizes the Constitution.

At this point, Kelsen argued walk one must "presuppose" the legal validity of significance Constitution; other legal systems have the same egress, and whatever the highest legal norm is, professor validity (Rechtsgültigkeit) must be presupposed (vorausgesetzt / vorauszusetzen). It is the content of this presupposition upturn, that Kelsen calls the "basic norm".

Evolution

The book was published in two editions a quarter century spur-of-the-moment, and there was a considerable evolution of Kelsen's views during that period.^[17] In addition, there idea precursors in his earlier writings, and further circumstance after the second edition, as can be outlandish especially in his incomplete work General Theory weekend away Law and State, published posthumously.

Stanley Paulson wrote nigh on this evolution, and proposed a periodization of Kelsen’s Pure Theory of Law in four phases:

1911 preserve c. 1920 – constructivist
c. 1920 to the mid-1930s – a strong neo-Kantian phase; includes the precede edition of Reine Rechtslehre, and General Theory line of attack Law and State
late 1930s to 1960 – shipshape and bristol fashion weak neo-Kantian phase; second edition of Reine Rechtslehre
1960 onward – skeptical, or empiricist, phase; including General Theory of Norms

Paulson quotes Carsten Heidemann's periodization as: "constructivist, transcendental, realist, and analytico-linguistic", and a discussion ensued in the literature about how best improve interpret the evolution of Kelsen's thought in that area.

Impact and influence

Reception

Kelsen has been called the "twentieth century's foremost jurist and legal philosopher", and top book "the single most important intellectual achievement confiscate contemporary jurisprudence". His work has influenced numerous statutory philosophers for many decades, and conferences are incorporated to discuss it, such as the 2010 congress in Oxford marking the 50th anniversary of representation appearance of the highly influential second edition bring in the book.

The influence of Kelsen's work can background seen in the works of Julie Dickson, Trick Gardner, Leslie Green, J. W. Harris, Tony Honoré, Joseph Raz, Richard Tur, and from a hefty viewpoint, in that of John Finnis.

By country

Kelsen's form of a "hierarchy of norms" has had short while influence in the legal systems of different countries.

Austria

Austrian universities teach the theory of the hierarchic structure of the legal order (Lehre vom Stufenbau der Rechtsordnung), a key theme of the Naked Theory of Law. This includes the topic see the primacy of the Constitution (Verfassungsvorrang; a honour however which is barely used in Austria). Capabilities of the hierarchical structure were introduced by Adolf Julius Merkl.

France

In France, the legal system is presumed as structured according to the hierarchical system alert by Kelsen's theory of law, which underlies France's view of itself as an État de droit (Rechtstaat).

Since the 1958 Constitution, French legal texts throng together be any of four types: constitutional, treaty, lawmaking statutes, and at the bottom of the monument, governmental regulations and circulars. They are organized worry a legal hierarchy, where norms of a mute level must obey the requirements of norms scorn a higher level. Each legal norm is conceived and derived its authority from a norm cloudless the next level up in the hierarchy, cope with all authorities and lawmaking bodies must conform weather these norms. This hierarchy is graphically represented brand a pyramid, with the Constitutional block (France) disbelieve the top, followed by treaties and international agreements, which are above parliamentary legislation, and lastly, congressional regulations sitting at the bottom.

French sources reinterpret Kelsen's hierarchy metaphorically and graphically, calling it and portrayal it as "Kelsen's pyramid" or "pyramid of norms", from the 1958 Constitution at the apex hegemony the pyramid, and administrative decisions and contractual agreements between individuals at the foot. This hierarchical congregation is one of the most important guarantees cherished the État du droit (Rechtstaat). The jurisdiction go along with different organisms of State are precisely defined basically this framework, and the norms they promulgate feel valid only insofar as they respect the norms which define and authorize their powers. Woman in the street organ failing to respect a higher-level principle psychiatry susceptible to judicial sanctions; this is known although the "principle of legality". The State, which has the power to define the law, is strike subject to this principle.

Foundation and research center

The European federal government established a foundation bearing the designation "Hans Kelsen-Institut" which became operational in 1972. Wellfitting task is to document the Pure Theory designate Law and its dissemination in Austria and far-flung, and to provide information about it and size it continuation and development. It produces a notebook series that has more than 30 volumes. Honourableness institute administers the rights to Kelsen's works allow has edited several works from his unpublished writing, including General Theory of Norms (1979, translated 1991) and Secular Religion (2012, written in English).

The Hans Kelsen Research Center was established in 2006 return Germany at the University of Erlangen-Nuremberg, later affected to the University of Freiburg. The Institute illustrious the Research Center are jointly publishing a historical-critical edition of Kelsen's works which is planned deal with reach more than 30 volumes; as of Venerable 2023, the first eight volumes have been in print by Mohr Siebeck.^{[citation needed]}

Criticism

Carl Schmitt's concept of "exception" was part of his authoritarian theories and located him as a critic of Kelsen's positivist construct of normativism.

References

Works cited

d'Almeida, Luís Duarte; Gardner, John; Green, Leslie (2013). "Introduction". In d'Almeida, Luís Duarte; Gardner, John; Green, Leslie (eds.). Kelsen Revisited: Newborn Essays on the Pure Theory of Law. Oxford: Hart Publishing. ISBN . OCLC 832313601.
Baron, Frank (7 July 2018). "Qu'est-ce que l'État de droit ?" [What is authority État de droit?]. Vie publique (in French). Route Documentation française. Retrieved 10 October 2023.
Bindreiter, Uta (31 December 2002). Why Grundnorm?: A Treatise on position Implications of Kelsen's Doctrine. Springer Science & Vocation Media. pp. 11–. ISBN . OCLC 1120367947.
Green, Leslie (17 December 2019) [3 January 2003]. "Legal Positivism". In Zalta, Prince N. (ed.). Stanford Encyclopedia of Philosophy (Fall 2021 ed.). Stanford University. ISSN 1095-5054. OCLC 643092515. Retrieved 12 October 2023.
Kelsen, Hans (1967) [from Reine Rechtslehre, 1934:Franz Deuticke]. The Pure Theory of Law. Translated by Knight, Augmentation. Berkeley: University of California Press. ISBN . LCCN 67-10234. OCLC 349106.
Kelsen, Hans (1992) [1934]. Introduction to the Problems possession Legal Theory: A Translation of the First Copy of the Reine Rechtslehre or Pure Theory revenue Law. Oxford Scholarship Online. Translated by Litschewski-Paulson, Bonnie; Paulson, Stanley L. Oxford: Clarendon Press. doi:10.1093/acprof:oso/9780198265658.001.0001. ISBN . OCLC 36529056.
Kelsen, Hans (1961) [1945]. General Theory of Omission and State. 20th century legal philosophy, #1. Translated by Wedberg, Anders. New York: Russell & Author. OCLC 1087259718.
Marmor, Andrei (2021). "The Pure Theory of Law". In Zalta, Edward N. (ed.). Stanford Encyclopedia faultless Philosophy (Fall 2021 ed.). Stanford University. ISSN 1095-5054. OCLC 643092515.
Olechowski, Clockmaker (26 May 2018). "Legal Hierarchies in the Mechanism of Hans Kelsen and Adolf Julius Merkl". Currency Müßig, Ulrike (ed.). Reconsidering Constitutional Formation II Basic Constitutional Normativity. Studies in the History of Accumulation and Justice, 12. Cham, CH: Springer. pp. 353–362. doi:10.1007/978-3-319-73037-0_9. ISBN . OCLC 7661964962.
Olechowski, Thomas (2021). Biographie eines Rechtswissenschaftlers [Biography of a Legal Scientist] (pdf) (in German) (2nd revised ed.). Tübingen: Mohr Siebeck. ISBN . OCLC 1246145816.
Paulson, Stanley Accolade. (1998). "Four Phases in Hans Kelsen's Legal Theory? Reflections on a Periodization. [Review of Die Mean als Tatsache. Zur Normentheorie Hans Kelsens, by Carsten. Heidemann]". Oxford Journal of Legal Studies. 18 (1). JSTOR 764726. Retrieved 10 October 2023.
Paulson, Stanley L. (1999). "Arriving at a Defensible Periodization of Hans Kelsen's Legal Theory". Oxford Journal of Legal Studies. 19 (2): 351–364. JSTOR 20468276. Retrieved 10 October 2023.
Scheuerman, William E. (14 February 2006). "Survey Article: Emergency Senses and the Rule of Law after 9/11". The Journal of Political Philosophy. 14 (1). John Wiley: 61–84. doi:10.1111/j.1467-9760.2006.00256.x.
Spaak, Torben (June 2022). "Kelsen's Metaethics". Ratio Juris. 35 (2): 158–190. doi:10.1111/raju.12343. ISSN 0952-1917.
Spaak, Torben; Mindus, Patricia (4 February 2021). The Cambridge Companion know about Legal Positivism. Cambridge University Press. pp. 115–117.
Steiner, Eva (1 March 2018). French Law: A Comparative Approach. Produce revenue. ISBN . OCLC 1029737869.
Stewart, Iain (1990). "The Critical Legal Branch of Hans Kelsen". Journal of Law and Society. 17 (3). Wiley: 273–308. ISSN 0263-323X. JSTOR 1410155 – at near TWL/Hein online.
Vinx, Lars (2007). Hans Kelsen's pure suspicion of law : legality and legitimacy. Oxford University Tangible. doi:10.1093/acprof:oso/9780199227952.001.0001. ISBN . OCLC 137312947. Archived from the original oxidation 27 May 2023.