Kelsen – Which Kelsen? A Reapplication of the Pure Theory to International Law

2009 ◽  
Vol 22 (2) ◽  
pp. 225-249 ◽  
Author(s):  
JÖRG KAMMERHOFER
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Pure Theory ◽  
Municipal Law ◽  
Hans Kelsen ◽  
Theory Of Law ◽  
The Right ◽  
Relationship Of ◽  
The Relationship ◽  
Legal Theorist

AbstractHans Kelsen is known both as a legal theorist and as an international lawyer. This article shows that his theory of international law is an integral part of the Kelsenian Pure Theory of Law. Two areas of international law are analysed: first, Kelsen's coercive order paradigm and its relationship to the bellum iustum doctrine; second, the Kelsenian notion of the unity of all law vis-à-vis theories of the relationship of international and municipal law. In a second step, the results of Kelsenian general legal theory of the late period – as interpreted and developed by the present author – are reapplied to selected doctrines of international law. Thus is the coercive order paradigm resolved, the unity of law dissolved, and the UN Charter reinterpreted to show that the concretization of norms as positive international law cannot be unmade by a scholarship usurping the right to make law.

Realism and international law: the challenge of John H. Herz

2010 ◽  
Vol 2 (3) ◽  
pp. 410-445 ◽  
Author(s):  
Casper Sylvest
Keyword(s):  
International Law ◽  
Intellectual History ◽  
The United States ◽  
World Politics ◽  
Pure Theory ◽  
Intellectual Context ◽  
Hans Kelsen ◽  
Theory Of Law ◽  
Politics And Law ◽  
The Relationship

The proliferation, globalization, and fragmentation of law in world politics have fostered an attempt to re-integrate International Law (IL) and International Relations (IR) scholarship, but so far the contribution of realist theory to this interdisciplinary perspective has been meagre. Combining intellectual history, the jurisprudence of IL and IR theory, this article provides an analysis of John H. Herz’s classical realism and its perspective on international law. In retrieving this vision, the article emphasizes the political and intellectual context from which Herz’s realism developed: the study of public law in Germany during the interwar period and in particular the contribution of Hans Kelsen and the pure theory of law to the study of international law. Herz was deeply inspired by Kelsen but he criticized the pure theory for ignoring the sociological foundations of law. Following his emigration to the United States, Herz embraced realism but without disregarding international law. Indeed, his mature, globally oriented realism offers a balanced, fruitful perspective for thinking about the relationship between politics and law that is deeply relevant for contemporary theory: it challenges modern, law-blind variants of realism and holds considerable potential for contributing to the approaches that have most successfully studied the law–politics nexus.

scholarly journals Direito e ciência na teoria pura do direito E o problema da liberdade em Kelsen

2021 ◽  
Vol 2 (1) ◽  
pp. 18-33
Author(s):  
Flávio Marcelo Rodrigues Bruno
Keyword(s):  
Complex Problem ◽  
Pure Theory ◽  
Legal Literature ◽  
Hans Kelsen ◽  
The Law ◽  
Theory Of Law ◽  
Law And Science ◽  
The Relationship ◽  
Legal Theorist

O estudo destina-se a abordar a relação entre o direito e a ciência na Teoria Pura do Direito e o problema da cientificidade na literatura de Hans Kelsen, inicia-se a abordagem com a análise entre a norma jurídica e a proposição jurídica, após uma realiza-se uma abordagem entre a causalidade (ser) e a imputação (dever-ser), expõe-se a ideia kelseneana de norma fundamental e por fim, coloca-se o complexo problema da liberdade na obra deste importante autor da literatura jurídica concluindo que o respostas a este problema só serão encontradas quando atendidas as exigências da ciência. O que se observa é que a norma fundamental defendida por Kelsen é necessária sim para o teórico do direito, aquele que tem a função de explicar a validade do direito, explicar de onde vem a força do direito - se do ser ou do dever-ser, ou seja, de um fato ou de uma norma -, mas não para o prático do direito, pois a norma fundamental, como já frisado, é uma norma hipotética, não tem conteúdo, e é justamente disso que precisam os operadores do direito para aplicarem a norma.   The study is intended to address the relationship between law and science in the Pure Theory of Law and the problem of scientificity in Hans Kelsen's literature. an approach is made between causality (being) and imputation (should-be), it exposes the Kelsenean idea of ​​fundamental norm and, finally, the complex problem of freedom in the work of this important author of legal literature is presented, concluding that the answers to this problem will only be found when the demands of science are met. What is observed is that the fundamental norm defended by Kelsen is indeed necessary for the legal theorist, who has the function of explaining the validity of the law, explaining where the force of law comes from - whether of being or of the should-be , that is, of a fact or a norm -, but not for the legal practitioner, as the fundamental norm, as already emphasized, is a hypothetical norm, has no content, and this is precisely what the operators of the law need to apply the standard..

Kelsen's Theory of International Law

1936 ◽  
Vol 30 (4) ◽  
pp. 736-741 ◽  
Author(s):  
W. B. Stern
Keyword(s):  
International Law ◽  
Natural Law ◽  
Scientific Basis ◽  
Law Schools ◽  
Pure Theory ◽  
Hans Kelsen ◽  
Theory Of Law

Among legal philosophers, the time-honored dispute between natural-law schools and legal positivists arouses ever new interest. On the side of the positivists, the “pure theory of law” gains more and more ground. This theory is mainly represented by Professor Hans Kelsen, formerly of Vienna, now of Geneva, and by Professor Alfred von Verdross, of Vienna. In America, systematic consideration was first devoted to it by Dr. Johannes Mattern, who analyzed Verdross's thinking; later, Dr. Josef L. Kunz, one of the foremost followers of Kelsen, took up the discussion, emphasizing the importance of the theory for a scientific basis of international law; and quite recently an article by Dr. Henry Janzen dealt with legal monism as the basis of the “pure theory of law.”

scholarly journals The problem of anti-psychologism in Hans Kelsen’s “Pure Theory of Law”

2021 ◽  
pp. 22-28
Author(s):  
Dmitry Aleksandrovich Savenkov
Keyword(s):  
Legal Theory ◽  
Significant Part ◽  
Pure Theory ◽  
History Of ◽  
Hans Kelsen ◽  
Theory Of Law ◽  
Legal Methodology

This article examines the nature and specificity of the criticism of psychologism as a theoretical-methodological orientation towards studying law and its interpretation, which in particular was associated with such version of interpretation of law as the “Pure Theory of Law” of Hans Kelsen. More in-depth representations of modern legal theory in understanding the patterns of law and its essential aspects requires the due coverage of the history of psychological and anti-psychological approaches towards law that form of the major oppositions in the development of legal though at the turn of the XIX – XX centuries. Multiple aspects of H. Kelsen's legal views are yet to be examined, including the correlation of his doctrine with other doctrines, as well as the nature of substantiation of law and the analysis of legal phenomena. The scientific novelty of lies in the fact that based on the analysis of legal views of the Austrian jurist Hans Kelsen wirh his pronounced claim to exclude all “non-legal’ elements, it is revealed that a significant part of conceptual-logical apparatus of Kelsen’s teaching and the approaches towards substantiation of law were psychological in nature. Unlike the objective-idealistic positions of H. Kelsen, legal Neo-Kantianism was methodologically more accurate in elucidation of interrelation between the actual legal phenomenon and the role of gnoseological methods of perception and comprehension of law. The assessment of H. Kelsen’s doctrine as the theory of law is subject to criticism in this article, since in reality it is limited to the issues of legal methodology.

Kelsen, Hans (1881–1973)

2018 ◽  
Author(s):  
Zenon Bankowski
Keyword(s):  
Political Philosophy ◽  
Twentieth Century ◽  
International Law ◽  
Legal Philosophy ◽  
Pure Theory ◽  
Hans Kelsen ◽  
Theory Of Law

Hans Kelsen was one of the foremost (positivist) legal theorists of the twentieth century. He taught in Vienna, Cologne, Geneva and Paris, and finished his life in America, teaching in Chicago, Harvard and Berkeley. He wrote widely, on legal philosophy, constitutional and international law, and political philosophy. Kelsen is best known for his Pure Theory of Law (Reine Rechtslehre) (1934). This is the basis of a theory which, with many changes, he espoused till he died.

The Epistemological Necessity of Legal Monism

2018 ◽  
Author(s):  
Paul Gragl
Keyword(s):  
International Law ◽  
Short Introduction ◽  
Pure Theory ◽  
Legal Validity ◽  
Joseph Raz ◽  
The Law ◽  
Theory Of Law ◽  
The Relationship

This chapter depicts and defends monism in its positivist-epistemological manifestation (as envisaged by the Vienna School of Jurisprudence’s pure theory of law) as the most viable concept to theorize the relationship between different bodies of law. After a short introduction to the (neo-)Kantian sources of Kelsen’s theory, the concept of the Grundnorm and the hierarchy of norms will be discussed in detail. Subsequently, it will be argued why legal monism under the primacy of international law is the only avenue through which the law can be meaningfully cognized and the concept of legal validity be taken seriously. The last part of the chapter is dedicated to a defence of legal monism against two of its staunchest critics, namely H.L.A. Hart and Joseph Raz.

International Law and Religion

2017 ◽  
Author(s):  
Martti Koskenniemi
Keyword(s):  
International Law ◽  
Research Agendas ◽  
Relationship Of ◽  
The Relationship

This chapter introduces the themes and the chapters of the book. It points out that there has been no clear tradition of research on the relations of ‘international law’ and ‘religion’. Hence, for the production of this work, there was no stable ground. The editors have tried to avoid pronouncing on the value of ‘more’ or ‘less’ intense engagement between international law and religion; instead the point has been to focus the various, often hidden forms of their alliance. Any study of ‘religion’ and ‘international law’ must confront the fact that both terms are complex wholes of ideas and practices whose scope and meaning is contested by people most intimately connected to them. Even to ask the question of the ‘relationship of international law and religion’ is scarcely more than to gesture towards further inquiries and research agendas about how each entity should be best approached.

The Obligation to Afford Reparation to Injured Individuals

2017 ◽  
Author(s):  
Carla Ferstman
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Treaties ◽  
The Law ◽  
The Right ◽  
Right Of Access ◽  
The Relationship

This chapter considers the consequences of breaches of human rights and international humanitarian law for the responsible international organizations. It concentrates on the obligations owed to injured individuals. The obligation to make reparation arises automatically from a finding of responsibility and is an obligation of result. I analyse who has this obligation, to whom it is owed, and what it entails. I also consider the right of individuals to procedures by which they may vindicate their right to a remedy and the right of access to a court that may be implied from certain human rights treaties. In tandem, I consider the relationship between those obligations and individuals’ rights under international law. An overarching issue is how the law of responsibility intersects with the specialized regimes of human rights and international humanitarian law and particularly, their application to individuals.

Human Rights and the Mediatization of International Law

2010 ◽  
Vol 23 (3) ◽  
pp. 507-527 ◽  
Author(s):  
DANIEL JOYCE
Keyword(s):  
Human Rights ◽  
New Media ◽  
International Law ◽  
Theoretical Work ◽  
International Regulation ◽  
The Media ◽  
Legal Forms ◽  
Relationship Of ◽  
Communicative Capitalism ◽  
The Relationship

AbstractThis article considers the relationship of international law and the media through the prism of human rights. In the first section the international regulation of the media is examined and visions of good, bad, and new media emerge. In the second section, the enquiry is reversed and the article explores the ways in which the media is shaping international legal forms and processes in the field of human rights. This is termed the ‘mediatization of international law’. Yet despite hopes for new media and the Internet to transform international law, the theoretical work of Jodi Dean warns of the danger to democracy of commodification through the spread of ‘communicative capitalism’.

HUBUNGAN SIKAP PASIEN TERHADAP HAK DAN KEWAJIBAN RAWAT INAP DI RUMAH SAKIT PEKANBARU MEDICAL CENTER (PMC)

2021 ◽  
Vol 13 (1) ◽  
pp. 17-25
Author(s):  
Nur Maimun ◽  
Arnawilis ◽  
Cindy Feby Fayza ◽  
Nur Asikin
Keyword(s):  
Patient Safety ◽  
Medical Information ◽  
Medical Center ◽  
Patient Treatment ◽  
Patient Attitudes ◽  
Chi Square ◽  
Cross Sectional ◽  
The Right ◽  
Relationship Of ◽  
The Relationship

Patient as service users have right and obligations to be hospitalized and patients also have the right to medical information in receiving medical practice services. This study aims to determine the relationship between patient attitudes towards the rights and obligations of being hospitalized in the hospital Pekanbaru Medical Center (PMC). This research method using observational analytic method with cross sectional design. The total sample used in this study 107 sample were taken as simpel random sampling. Chi square test is used to determine the relationship between variables. The data were processed using SPSS statistical software and analyzed using univariate and bivariate analyzes. Of the result obtained of the study namely the relationship between patient attitude to the rights and obligations of patient with chi-suare obtained pvalue 0.016 (<0,05), the relationship of attitude patients to the rights and obligations of choosing a doctor and class of patient care with chi-square obtained pvalue 0,070 (<0,05), the relationship of patient attitudes to the right and obligations of confidentiality of disease by inpatient medical staff with chi-square obtained pvalue 0,000 (<0,05), the relationship of patient attitudes to the rights and obligations of consent to the patient treatment with chi-square obtained pvalue 0,000 (<0,05), the relationship of patient attitudes to the right and obligation of patient safety with chi-square obtained pvalue 0,000 (<0,05), the relationship between patient attitudes towards the right and obligations of patient safety with chi-square obtained pvalue 0,000 (<0,05). Suggestions in order to protect what has been achieved in this case is his ability as effort of service is getting better in the future Keyword : Attitudes of patient, Rights and Obligations inpatient, Hospital

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