Pure Theory of Law

The Pure Theory of Law is one of the Austrian jurist Hans Kelsen (1881-1973) developed variant of legal positivism.

The Pure Theory of Law is a theory of positive law " par excellence ", that it claims to be able to be applied to any human ever set ( = positive ) law. The treatment of a superhuman law, the so-called natural law is, in contrast, rejected as unscientific. The aim of the Pure Theory of Law is the scientific description of the right of the alien to her admixtures, among other things sociological, psychological, biological, religious, ethical and political way of divorce. The Pure Theory of Law represents the postulate of separation between the sphere of being, ie sentences about factual, and the ought, ie Sentences about normative.

Exemplary form of legal positivism

Hans Kelsen is a good example with its pure theory of law for the legal positivism, as its most consistent and for the legal philosophy of the 20th century 's most influential representative he is. The legal positivism in common is the emphasis on rigorous scientific jurisprudence, by which is meant a restriction on the right real tangible to the exclusion of metaphysical reasons. This leads to the fundamental also for the pure theory of law acceptance of the separation thesis and the relativity thesis.

Relativity theory / criticism of natural law

The relativity theory denies the human knowledge of an absolute standard and is thus based on an ethical Nonkognitivismus or a value relativism. With reference to the emerging historically, very different views on manipulable, objective standards of value, a value of each system proved to be cultural phenomenon, and therefore relative. There is no - reponsibilities for people - kind of objective criterion for assessing the inner, moral correctness of a standard.

Separation thesis

It follows the separation thesis. Law and morality are two separate value systems. Justice is for Kelsen aspect of morality and how it is performing an irrational ideal that is not compatible with science. This means that every legal norm is valid irrespective of their content / claims to see if they came about only after the existing legal production standards. " ( ... ) Therefore, any content can be right."

It should be noted that Kelsen strictly distinguishes between the " validity " (ie the " specific existence " of a norm ) and the " liability " di the moral question of whether one adheres to the standard, or it breaks - according to Kelsen, this can only decide each individual for himself, an objective standard, it can not give.

Later Kelsen extends the separation thesis. In the posthumously published The General Theory of Standards (1979 ), he universalized the separation thesis to the effect that the " validity " (positive existence) of any standard order, except such as a particular social morality, a given State or State law or a religious community could not depend on the substantive agreement with another standard order.

Theory of positive law

Right is for Kelsen after an order of content of any coercive norms, understood as a purely formal category. His total validity is due to the effectiveness of his compulsion. The concept of positive law heard afterwards that an omission of a legally offered behavior attracts legally organized coercive measures by themselves. For any further justification of coercion is not required to recognize something as a right, as its justification the area of ​​non-empirical 'ought' must originate ( metaphysics ) and therefore can not be the subject of the pure theory of law.

In the late phase of his work, the weighting shifts away from the necessity of coercive character. Although it was for jurisdictions "essential" that they can implement their orders with coercion, but generalizes had a standard order only provide some form of sanction, such as also the disapproving disapproval or the honorific praise by the members of society.

Acceptance of the basic norm

The categories "being" and " ought" to be separated strictly by neo-Kantian conception. Neither can a being an ought ( "Because Judge R said it, to D thief in jail " ), nor by a If a being ( "Because no one should steal, the thief must sit in jail D " ) are derived. Only a If another could Shall follow ( "Because you should follow the rulings of judges, should one 's conviction thief D note "). A standard which is nothing more than a Sollensanordnung, can their specific existence, that is, their validity, only from a different - higher standing in the hierarchy of the legal - standard derived. This inevitably leads to an infinite regress (eg up to a " historically first constitution", which was adopted by revolution, Oktroy etc.. Validity of your base should now but again a basis for validity have ). To this infinitem recourse to set a limit, Kelsen introduced the so-called basic norm, a term that the well-known Austrian international lawyer Alfred Verdross has (1890 to 1980) " The unity of the international legal world view " devised in 1921 in his work. The basic standard is not set and also has no content. It is provided to complete a law in itself. The basic standard is therefore a transcendental- condition. Assuming a legal system is defined as the sum of those standards, which can be traced back to a basic standard. In the first edition of the " Pure Theory of Law " (1934 ) has considered its basic norm as a hypothesis Kelsen. In the 2nd edition (1960 ) he goes on to regard the basic standard as " fiction".

Posthumously, he opted for the latter approach, and seems to be further away from the Transzendentallogik. The basic standard is now a real fiction in the sense of Vaihingerschen " as-if " philosophy.

Relationship to other lessons

The Pure Theory of Law is the law of nature, but also the sociological school of law by Max Weber and Eugene Ehrlich hostile towards. Your legal concept that is based on setting and compulsion is ultimately grounded on power.

One of the main antipodes of the Pure Theory of Law was Carl Schmitt.