Hans Kelsens Pure Theory of Law: Legality And Legitimacy

Hardcover | September 6, 2007

byLars Vinx

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Hans Kelsen is commonly considered to be among the founding fathers of modern legal philosophy. Despite Kelsen's prominence as a legal theorist, his political theory has so far been mostly overlooked. This book argues that Kelsen's legal theory, the Pure Theory of Law, needs to be read in thecontext of Kelsen's political theory. It offers the first comprehensive interpretation of the Pure Theory that makes systematic use of Kelsen's conception of the rule of law, of his theory of democracy, his defense of constitutional review, and his views on international law. Once it is read in the context of Kelsen's political works, Kelsen's analysis of legal normativity provides us with a notion of political legitimacy that is distinct from any comprehensive and contestable theory of justice. It shows how members of pluralist societies can reasonably acknowledge thebinding nature of law, even where its content does not fully accord with their own substantive views of the requirements of justice, provided it is created in accordance with an ideal of fair arbitration amongst social groups. This result leads to a fundamental re-evaluation of the Pure Theory of Law. The theory is best understood as an attempt to find a middle ground between natural law and legal positivism. Later positivist legal theorists inspired by Kelsen's work failed to appreciate the political-theoretical contextof the Pure Theory and turned to a narrow instrumentalism about the functions of law. The perspective on Kelsen offered in this book aims to reconnect positivist legal thought with normative political theory.

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Hans Kelsen is commonly considered to be among the founding fathers of modern legal philosophy. Despite Kelsen's prominence as a legal theorist, his political theory has so far been mostly overlooked. This book argues that Kelsen's legal theory, the Pure Theory of Law, needs to be read in thecontext of Kelsen's political theory. It of...

Lars Vinx is a Max Weber Postdoctoral Fellow in the Department of Law at the European University Institute in Florence, Italy.

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Format:HardcoverDimensions:260 pages, 9.21 × 6.14 × 0.79 inPublished:September 6, 2007Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199227950

ISBN - 13:9780199227952

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Table of Contents

1. IntroductionThree paradigms of legal positivismKelsen's legal scienceKelsen's legal politics and the identity of law and stateDemocracy, constitutionalism, and legal peace in Kelsen's utopia of legality2. The Pure Theory of Law - Science or Political theory?Law and Nature - Subjective and Objective Legal MeaningKelsen's theory of legal orderKelsen and theoretical anarchism: The pure theory as critique of ideologyConclusions on Law and NatureLaw and MoralityThe pure theory as a theory of legal legitimacyKelsen and the separation of law and moralityFurther questions3. Kelsen's Principles of LegalityLegal hierarchy and depersonalization of the stateKelsen's principle of legality I: NullityKelsen's principle of legality II: VoidabilityThe sovereignty of law: The doctrine of normative alternatives reconsideredFurther questions4. Kelsen's Theory of Democracy - Reconciliation with Social OrderKelsen on the 'torment of heteronomy'The failure of the argument from deliveranceKelsen's defense of majority rule: The argument from reconciliationFreedom and Compromise: Democracy and constitutional entrenchmentKelsen's relativism5. Democratic Constitutionalism - Kelsen's Theory of Constitutional ReviewKelsen's conception of adjudication: Implications for a theory of reviewKelsen on the concept of constitutionConstitutional values and judicial role6. Kelsen's Legal CosmopolitanismKelsen and the dogma of sovereigntyKelsen's doctrine of the unity of law - a defenceOn the viability of legal cosmopolitanismThe moral relevance of Kelsen's legal cosmopolitanismVII. Conclusions - The Pure Theory of Law and Contemporary Positivism