Philosophy and thinking of Hans Kelsen

Hans Kelsen (1881-1973) was an Austrian jurist, legal philosopher, and the principal figure behind the Pure Theory of Law. His work has had a significant impact on legal theory and philosophy, particularly in the 20th century. Here are some key aspects of Kelsen's philosophy and thoughts: ### 1. **Pure Theory of Law**: - Kelsen's most significant contribution is the Pure Theory of Law, which seeks to describe law as a system of norms without considering ethical or moral implications. - He argued for a separation between law and morality, asserting that legal science should focus solely on the norms themselves. ### 2. **Legal Positivism**: - Kelsen is often associated with legal positivism, which emphasizes that law is a human-made construct and not derived from any moral or natural law. - He contrasted his views with natural law theories, which argue that there are inherent moral laws that inform human laws. ### 3. **Normativity**: - Central to Kelsen's theory is the concept of normativity. He posited that legal norms derive their authority from higher norms in a hierarchical structure, known as the "Kelsenian pyramid." - At the apex of this structure is the Grundnorm (or "basic norm"), which serves as the foundational rule from which all other norms derive their legitimacy. ### 4. **Legal System**: - Kelsen viewed the legal system as a coherent and structured set of norms that function independently of political or ethical considerations. - He emphasized the importance of understanding law as a normative system, where validity, not efficacy, is the crucial criterion for the existence of law. ### 5. **Dynamic Nature of Law**: - Kelsen recognized that law is dynamic and changes over time, influenced by social, political, and economic factors. However, he maintained that these changes do not affect the systematic and normative nature of law itself. ### 6. **Influence of Sociology**: - While Kelsen focused on legal norms, he also acknowledged the relevance of sociological factors in understanding how laws influence society and how societies influence laws. ### 7. **Criticism of Kelsen**: - Kelsen’s strict separation of law from morality drew criticism from various legal theorists who argued that law cannot be understood in isolation from ethical considerations. - Critics also contend that the Pure Theory fails to recognize the role of social and political contexts in shaping legal norms. ### 8. **Legacy**: - Kelsen's work laid the groundwork for many contemporary legal theories and continues to be a significant reference point in discussions about the nature of law and its function in society. - His ideas have influenced both legal scholars and practitioners, as well as those in related fields such as political science and philosophy. ### Conclusion: Hans Kelsen's Pure Theory of Law offers a distinctive approach to understanding legal systems detached from morality and politics, emphasizing a structured, normative perspective on law. His contributions remain vital in legal philosophy, shaping debates around the nature, application, and function of law in society.