Kelsen

From Lawiki - The law notes repository
Jump to navigation Jump to search
Lawiki for and by law students - find us on Facebook if you want to help us edit this Law Wiki.

Not professional advice - LAWIKI cannot guarantee the validity of any information




Template:Infobox person

Hans Kelsen was an Austrian lawyer and philosopher, educated in the early 20th century, who emigrated to the USA when Hitler came to power. He eventually became professor of philosophy at the University of California. His most influential work was Pure Theory of Law.

Kelsen's theory is essentially one of Legal positivism in that he rejected any necessary connection between law and morals, and repudiated claims that law required moral valiation to be legitimate. However, unlike other positivists, Kelsen saw a legal statement as being a form of Normative statement, that is a statement how one ought to behave. Most positivist saw legal statements as being descriptive. In such a descriptive view, a statement like 'you ought not to steal' really means 'stealing is an act which may be accompanied by a particular meta of sanction'. For Kelsen, 'you ought not to steal' was a coercive statement, that is, one that seeks to bring about a particular meta of behaviour. The same, of course, could be said of the jurisprudence of Austin; however, for Austin a coercive statement was valid law because it issued from a supreme law-maker. Kelsen's theory says that law is a system of norms, in which norms are validated by other norms. Of course this leaves a potential infinite regress: what validates the norms that validates the other norms? The answer is that Kelsen's theory presupposes a 'basic norm' (grundnorm) against which any other norm can be validated. Of course, the basic norm itself cannot be validated within the system.

Kelsen's theory allows questions to be answered that defeat Austin's. Why, he asks, for example, is it legal for the state to make coercive demands for taxes, but illegal for an armed robber to demand money with menaces? Both are 'commands backed by threats' of the form that Austin ought to recognize. However, the actions of the state can, we assume, be validated with respect to other norms (one ought to allow the state to provide for other citizens...) which can in turn be validated by the basic norm.

See also Command theory, Legal positivism, Hart, Hart's theory of law.

UK LAW
Theory of Law