Kelsen on legal interpretation

Legal Studies ◽  
1990 ◽  
Vol 10 (2) ◽  
pp. 136-152 ◽  
Author(s):  
Stanley L. Paulson
Keyword(s):  
Legal Theory ◽  
Legal Norm ◽  
Legal Interpretation ◽  
Pure Theory ◽  
Half Century ◽  
Legal Philosopher ◽  
Theory Of Law

A number of writers have invited attention to the fact that Kelsen, in a long and extraordinarily productive career, gave very little attention to questions of legal interpretation. Kelsen's younger colleague in the Vienna School of Legal Theory, Fritz Schreier, himself a legal philosopher of note, remarked in 1929 that the Vienna School had neglected interpretation. Michael Thaler made the same point a half century later, writing that Kelsen devoted himself ‘entirely to an elucidation of the object of interpretation’, that is to say, the legal norm itself, without providing any details on ‘ how interpretation is to be done’. Other recent writers go further: Klaus Adomeit dismisses Kelsen's theory of interpretation as ‘methodological nihilism’ Günther Winkler writes that Kelsen’s theory, although ‘simple’, is both ‘mistaken and misleading’. Indeed, most recent writers who have examined the Pure Theory of Law on questions of legal interpretation take a dim view of Kelsen's work in the field.

Jerzy Wróblewski’s Legal Theory and His Influence on Humanist Legal Thought

2020 ◽  
Vol 45 (2-3) ◽  
pp. 200-216
Author(s):  
Marek Zirk-Sadowski
Keyword(s):  
System Theory ◽  
Legal System ◽  
Legal Theory ◽  
Analytical Theory ◽  
Legal Norm ◽  
Legal Interpretation ◽  
Legal Philosopher ◽  
Application Of Law ◽  
Theory Of Law ◽  
Law Making

This paper presents Jerzy Wróblewski’s (1926–1990) theory of law. He was an eminent Polish legal philosopher. His philosophical minimalism, anticognitivism, relativism and moderate reconstructivism constitute the basis for analytical theory of law in Poland. He was developing his theory of law over the span of several dozens of years but the assumptions were formulated already in his first work on legal interpretation published in 1959. His paradigm of legal theory includes several areas: the theory of the legal norm, theory of legal interpretation, theory of the legal system, theory of application of law, theory of law-making and the methodology of legal sciences.

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.

scholarly journals BASIS EPISTEMOLOGIS PARADIGMA RASIONAL DALAM ILMU HUKUM: SEBUAH DESKRIPSI TENTANG ASUMSI-ASUMSI DASAR TEORI HUKUM MURNI-HANS KELSEN

2014 ◽  
Vol 14 (3) ◽  
Author(s):  
Kelik Wardiono ◽  
Khudzaifah Dimyati
Keyword(s):  
Cognitive Science ◽  
Rule Of Law ◽  
Legal Norm ◽  
Empirical Reality ◽  
Philosophical Approach ◽  
Pure Theory ◽  
The Rule Of Law ◽  
Basic Assumptions ◽  
Hans Kelsen ◽  
Theory Of Law

Based on the philosophical approach, it is known basic assumptions of rational paradigm as seen in Hans Kelsen's pure theory of law that consists of: human assumptions based on the quasi-transcendental along with its characters and aurea aetas; ontological assumptions based on empirical reality and equating sein reality with sollen, and normativity created as logico transcendental conditions; epistemological assumption that underlying the science of law as cognitive science, creating the rule of law as a whole object, and reconstructing legal norm as the relation between non-causal and non-metaphysical facts; axiological assumption that reconstructs norm as the object of legal science and equating the basic norms with natural laws.Key words: basic assumptions, rational paradigm, the theory pure of law, jurisprudance.

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.

Austin, Kelsen, and the Model of Sovereignty

2011 ◽  
Vol 24 (2) ◽  
pp. 473-490 ◽  
Author(s):  
Lars Vinx
Keyword(s):  
Legal Theory ◽  
Pure Theory ◽  
Theory Of Law ◽  
The Way ◽  
John Austin

Hans Kelsen’s critique of John Austin has so far attracted little attention among legal theorists. This article argues that Kelsen’s attack on Austin anticipated the key elements of Hart’s rejection of the Austinian conception of law as sanction-backed sovereign command. At the same time, the way in which Kelsen presents his critique of Austin’s conception of sovereignty reveals important differences in purpose and intention between Kelsen’s Pure Theory of Law and Hart’s legal theory. The Pure Theory of Law is animated by an ideal of legality that is alien to purely descriptive jurisprudential approaches in the Hartian tradition.The article concludes that this difference between Kelsen and Hart merits further exploration and that it might help to show that the Pure Theory of Law is still relevant to contemporary legal theory.

scholarly journals Problems of Explication of Concepts of Validity and Efficacy of Law in E. Bulygin’s Legal Theory

2019 ◽  
Vol 14 (4) ◽  
pp. 81-107
Keyword(s):  
Legal Theory ◽  
Scientific Work ◽  
Legal Norm ◽  
Dispositional Property ◽  
Judicial Decisions ◽  
Binding Force ◽  
Traditional Notion ◽  
Limited Application ◽  
Technical Sense ◽  
Theory Of Law

Throughout his scientific work, the Argentine lawyer E. Bulygin re-peatedly analyzed the problem of the validity and efficacy of law. Based on the for-mu lations of H. Kelsen’s pure theory of law, E. Bulygin sought to explicate the con-cepts of legal validity and efficacy, i.e. to replace them with new more accurate ones. In the 1965 paper "The Concept of Validity" Bulygin entered into a polemic with H. Kelsen and A. Ross and formulated the concept of efficacy as a dispositional property of the legal norm reflecting its justiciability. Subsequently, however, the Argentine lawyer clarified his terminology and distinguished between the dispositional concept of efficacy (law in force) and the traditional notion of efficacy because of the conclusion on the expediency of using the old concept of efficacy along with the new one defined through justiciability. But the concept of efficacy as justiciability formulated by E. Bulygin faced a number of theoretical difficulties.In the 1966 paper "Judicial Decisions and the Creation of Law" E. Bulygin made an attempt to explicate the concept of validity. E. Bulygin points to three concepts designed to replace the traditional notion of validity: the validity of the norm in the system sense, the binding force of the norm and the existence of the norm. Each of these specified concepts was developed in theoretical constructions of the Argentine lawyer, however their using also generates the problems. Alternatively, the development of the notion of validity of law in the system sense can be considered "definitive" concept of validity proposed by E. Bulygin in collaboration with K.E. Alchourron in the monograph "Normative systems" (1971). However, this concept has significant differences from the originally formulated and has a very limited application. The concept of the existence of the norm does not receive independent development as a variant of the explication of the concept of the validity of law. The concept of the binding force of law, on the contrary, is divided by the Argentine jurist into two fundamentally different concepts — binding force in the metaphysical sense and binding force in the technical sense, which later E. Bulygin called "applicability". The concept of applicability was used by the Argentine legal philosopher to solve a number of problems of H. Kelsen’s theory, however the concept of applicability itself leads to paradoxical consequences.On the whole E. Bulygin’s project of explicating of the concepts of validity and efficacy of the law didn’t result in replacing them with series of new more precise concepts although refined in some way their meaning.

Between Legal Technique and Legal Policy: Remarks on Hans Kelsen’s Constitutional Theory

2017 ◽  
Vol 30 (2) ◽  
pp. 399-411
Author(s):  
Péter Sólyom
Keyword(s):  
Legal Theory ◽  
Constitutional Theory ◽  
Legal Scholar ◽  
Legal Policy ◽  
Pure Theory ◽  
Theoretical Concepts ◽  
Legal Thinking ◽  
Democratic Rule ◽  
Theory Of Law ◽  
Political Principles

In this article I seek to re-interpret some of the problems characteristic of Kelsen’s constitutional theory. I shall do so by making use of the Kelsenian perspectives of the legal scholar and the policy-maker as developed in his Pure Theory of Law. I shall argue that in his discussion of constitutional policy issues, Kelsen’s treatises mix legal theoretical arguments (related to the perspective of the legal scholar) with the practical approach of legal policy. My main contention is that political principles are more important for the use of Kelsen’s legal theoretical concepts than usually acknowledged in generally accepted interpretations. The Pure Theory of Law is based on the rejection of autocratic legal thinking, and may be regarded as a formalistic theory of law for a democratic rule of law. Such a conclusion, however, also means that Kelsen’s views concerning the methodology of legal theory are no longer tenable.

Pragmatic Reconstruction in Jurisprudence: Features of a Realistic Legal Theory

2021 ◽  
Vol 34 (1) ◽  
pp. 171-202
Author(s):  
Brian Z. Tamanaha
Keyword(s):  
Twentieth Century ◽  
Coercive Force ◽  
Social Life ◽  
Conceptual Analysis ◽  
Legal Theory ◽  
A Priori ◽  
Planning System ◽  
Universal Feature ◽  
Moral Problems ◽  
Theory Of Law

A century ago the pragmatists called for reconstruction in philosophy. Philosophy at the time was occupied with conceptual analysis, abstractions, a priori analysis, and the pursuit of necessary, universal truths. Pragmatists argued that philosophy instead should center on the pressing problems of the day, which requires theorists to pay attention to social complexity, variation, change, power, consequences, and other concrete aspects of social life. The parallels between philosophy then and jurisprudence today are striking, as I show, calling for a pragmatism-informed theory of law within contemporary jurisprudence. In the wake of H.L.A. Hart’s mid-century turn to conceptual analysis, “during the course of the twentieth century, the boundaries of jurisprudential inquiry were progressively narrowed.”1 Jurisprudence today is dominated by legal philosophers engaged in conceptual analysis built on intuitions, seeking to identify essential features and timeless truths about law. In the pursuit of these objectives, they detach law from its social and historical moorings, they ignore variation and change, they drastically reduce law to a singular phenomenon—like a coercive planning system for difficult moral problems2—and they deny that coercive force is a universal feature of law, among other ways in which they depart from the reality of law; a few prominent jurisprudents even proffer arguments that invoke aliens or societies of angels.

INFLUENCE OF LINGUISTIC PHILOSOPHY ON ANALYTICAL JURISPRUDENCE THROUGH THE PERSPECTIVE OF H. L. A. HART

2020 ◽  
Vol 9 (18) ◽  
pp. 315-330
Author(s):  
Luana Sion Li
Keyword(s):  
20Th Century ◽  
Legal Theory ◽  
Ordinary Language ◽  
Theoretical Development ◽  
Ordinary Language Philosophy ◽  
Language Philosophy ◽  
Legal Philosopher ◽  
Linguistic Philosophy ◽  
The Way

This article discusses the influence of emerging linguistic philosophy theories in the 20th century on the development of analytical jurisprudence through an examination of the way those theories influenced the legal philosopher H. L. A. Hart. Although Hart is significantly influenced by linguistic philosophy, his legal theory could not have been developed solely with it. This is evidenced by Hart’s disownment of the essay Ascription of Responsibility and Rights, his attempt to employ ideas from ordinary language philosophy in the context of law. Hart’s theoretical development shows that he was above all not a linguistic, but a legal philosopher; and that analytical jurisprudence, albeit influenced by linguistic philosophy, depends on aspects beyond it.

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