Kelsen essays in legal and moral philosophy

Kelsen speaks of two perils. It is not to be confused with the sociological domain or the cultural domain of intersubjective activity. This con trasting of realms of experience - nature and human behaviour -- with their correspondingly different ways of conjoining and explaining, is typical of Kelsen's basic philosophical attitude.

law is a normative science

Jeremy Telman ed. Coercive measures in case of disobedience - or the will to reward if the son obeys -- certainly do not have to be willed along with this. On the one hand, it serves a meta-theoretical function of delineating a theory of law in the positivist tradition and, thus, distinguishing it from a rival stance of natural law theory legal non-positivism.

If all the premises of an argument are descriptive, telling us what this or that is the case, then there is no prescriptive conclusion that can logically follow. But one is not rationally compelled to have this attitude: The Pure Theory describes the positive law as an objectively valid order and states that this interpretation is possible only under the condition that a basic norm is presupposed….

That constitution may have become established by custom or by revolution: the jurist does not evaluate the circumstances. On the occasion of his 90th birthday, we must not only congratulate Hans Kelsen on a well-spent life, but also thank him for his contribution to the science and wisdom of our age.

He says that '[t]o say that the existence of law depends on facts and not on its merits is a thesis about the relation among laws, facts, and merits, and not otherwise a thesis about the individual relata'.

Rated 8/10 based on 102 review
The Pure Theory of Law (Stanford Encyclopedia of Philosophy)