Hans Ke'sen

Background

Ke'sen, Hans was born in 11 October 81, Prague.

Career

Essor °f Law, University of Vienna, Univer- °f Cologne, University of Prague. Lecturer, ■trvard Law School: Professor of Political Science, University of California, Berkeley. Publications: 944) Peace Through Law, Chapel Hill: University °f North Carolina Press. 49) Genera/ Theory of Law and State, trans. nders Wedberg, Cambridge, Mass.: Harvard University Press. 50) The Law of the United Nations: A Critical Analysis of the Fundamental Problems. London: Stevens. * The Communist Theory of Law, London: Stevens. ' What is Justice?, University of California press. 11967) Principles of International Law. rev.

Robert W. ncker. New York: Rinehart & Winston. (1967) Pure Theory of Law, trans. Max Knight, Chapel Hill: University of Carolina Press. (1974) Essays in Legal and Moral Philosophy, trans. Peter Heath. Dordrecht: Reidel. (1991) General Theory of Norms, trans.

Michael Hartney, Oxford: Clarendon Press.

Works

• Other Work

  • Secondary literature:
    
    Harris, J. W. (1971) ‘When and why does the Grundnorm change?', Cambridge Law Journal: 103. Lipsky, George A. (ed.)( 1953) Law and Politics in the World Community: Essays on Kelsen s Pure Theory and Related Problems in International Law. Berkeley: University of California Press.
    
    Salo, Engel and Merall. Rudolf A. (1964) Law State and International Legal Order. Essays in Honor of Hans Kelsen, Knoxville: University of Tennessee Press.
    
    Tur. Richard and Twining. William (eds) (1986) Essays on Kelsen. Oxford: Clarendon Presa

Views

Often termed a ‘positivist of positivists’. Kelsen offers a ‘pure theory of law' which is devoid of any reference to ethics, politics, sociology, etc. He excludes disciplines such as ethics and politics from his enquiry about law because he wants to avoid an uncritical mixture of different methodologies that could obscure the science of law.

His theory offers a structural analysis of law as it is, but is not restricted to a specific legal order. For Kelsen. a legal system is a hierarchy of norms where each norm is validated by another norm which in turn is validated by another, and so on down the hierarchy. Each norm is derived from another norm and this is what gives the norm its validity: ‘The legal order is not a system of co-ordinated norms of equal level, but a hierarchy of different levels of legal norms. Its unity is brought about by.. the fact that the validity of a norm, created according to another norm, rests in that other norm, whose creation in turn, is determined by a third one'. If a norm can be derived only from another norm, does this derivation of norms carry on ad infinitum or does it come to a stop somewhere? According to Kelsen there is a norm on which all the other norms rest and this is the Grundnorm.

He formulates the basic norm as ‘Coercive acts sought to be performed under the conditions and in the manner which the historically first constitution and the norms created according to it, prescribe.’. This Grundnorm is non-positive. That is, it is not a real act of will of a legal organ, but is presupposed in juristic thinking. It is that which gives unity to the legal system.

And at the Grundnorm level, ethical, sociological and political factors do play a role. Although Kelsen’s 'pure theory of law' provides a commendable self-contained account of a legal system, it can be criticized, first, for being too distant from the ‘real’ world of law and, second, for allowing moral, social and political considerations, which he strenuously tried to keep out of his legal theory, to enter the picture at the Grundnorm level.

Interests

• Philosophers & Thinkers

  Kant and Hume.