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Home > Law > Law glossary > Law glossary
Kelsen
Last modified: Thu Feb 23 16:37:37 2006
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 LegalPositivism
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 NormativeStatement,
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
type of sanction'. For Kelsen, `you ought not to steal' was a
coercive statement, that is, one that seeks to bring about a
particular type 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.
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