Hans Kelsen
• 1881-1973
• Born into a Jewish family in Prague
• Began career in Austria an Germany.
• Moved to Switzerland and to the
United States as the Nazi’s came to power.
Why is it a Pure?
Kelsen’s Quest
Kelsen’s goal was to identify the
essence of law, the one thing that makes something law as opposed to the other
forms of direction that exist in society.
Kelsen desired to show the“oughts”
which provide that if certain conduct (X) is performed, then a sanction (Y)
should be applied by an official to the offender.
Kelsen’s departure from Austin
• Austin looked to the fear instilled by the existence of
a sanction
• Kelsen looked to the imperative direction on officials
who coerce and looked to the ultimate source of the legitimacy of that
coercion.
• Consider the directive of the
robber v. the directive of the tax collector.
The subjective meaning of the
robber’s coercive order is not interpreted as its objective meaning because “no
basic norm is presupposed according to which one ought to behave in conformity
with this order.”
Speed limit example.
Kelsen and Terminology
• Ought: If then it ought to (i.e. should) follow
• Norm: Is a fixed objective standard against which things
are judged. More akin to the English word “requirement”
• Validity: When norms are
binding they are valid. Valid norms flow from legal, as opposed to moral,
norms.
Kelsen as an extreme relativist.
• Norms are wholly relative to the individual or group
under consideration.
• “The validity of a positive
legal order cannot be denied because of the contend of norms”
Norms and Groundnorms
• Hierarchy of Norms: The coercive act of the bailiff in
cuffing the condemned is the ultimate stage in the progression from general
basic norm to particular individuated norm.
• Since the validity of a Groundnorm cannot depend on any
other norm it must be presupposed
• The Groundnorm is the logical presumption of the juristic
consciousness
• For England the Groundnorm is arguably William’s victory1066
• For the United States it is not
clear but it is some point between 1776 and 1789
Kelsen’s Story of the Inquiring
Child.
Keslen a Neo-Kantian?
• Namesake of the Pure Theory of Law is“The Critique of
Pure Reason”
• The groundnorm is the presupposed basic norm from which
all norms ultimately flow
• The juristic consciousness is
the end of rationalism in Kelsen’s system.
Kant v. Kelsen
• Kant is concerned about how we know the unknowable
• Kant is concerned with transcendental inquiry into
issues such as justice and moral action
• Kant sees practical reason as source of moral norms
• Kelsen shares this concern for the groundnorm only
• Kelsen is not concerned with such inquiries. He claims
to take a purely scientific approach
• Kelson does not.
Pure Theory in the Wake of Revolution
• Kelsen’s theory is considered by courts in the wake of
revolutions.
• According to Dias Kelsen’s
theory teaches nothing new in settled situations and teaches nothing new in
revolutionary conditions, where guidance is needed it is useless. Ultimately
the judge is left with a political decision.
Greneda sets forth a Kelsen test
• Four conditions for regarding a revolutionary government
as legal:
• a successful revolution must have taken place
• the government has effective control
• such conformity was due to popular support not mere
tacit submission to coercion
• the regime must not be
oppressive or Undemocratic.
Kelsen’s Theories in Practice
• Pakistan 1958
• Rhodesia 1965
• Uganda 1965
• Grenada 1988.
Kelsen and International Law
• Kelsen calls international law a “primitive” system
• International relations are governed by selfinterest and
fear
• Kelsen says the groundnorm must
rest either domestically or internationally but not both.
Kelsen as Positivist
• Per Keslen the validity of law is in no way concerned
with content
• Kelsen’s theory of law is
doubly pure positivism because it excludes sociology as well as morality.
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