Introduction to the Problems of Legal Theory

Introduction to the Problems of Legal Theory

Introduction to the Problems of Legal Theory

Introduction to the Problems of Legal Theory

Synopsis

One of the leading legal philosophers of this century, Kelsen published this short treatise in 1934, when the neo-Kantian influence on his work was at its zenith. An earlier, "constructivist" phase had been displaced by his effort to provide something approximating a neo-Kantian foundation for his theory. If this second phase represents the Pure Theory of Law in its most characteristic form, then the present treatise may well be its central text. And of Kelsen's many statements of the Pure Theory, this one is surely the most accessible. Topics covered include the legal norm and Kelsen's normativity thesis, law and morality, the role of ideology, the concept of the legal person, legal interpretation, the identity of law and state, and the theory of international law. Among the appendices is an annotated bibliography of secondary literature on Kelsen.

Excerpt

More than twenty years ago I undertook to develop a pure theory of law, that is, a legal theory purified of all political ideology and every element of the natural sciences, a theory conscious, so to speak, of the autonomy of the object of its enquiry and thereby conscious of its own unique character. Jurisprudence had been almost completely reduced--openly or covertly--to deliberations of legal policy, and my aim from the very beginning was to raise it to the level of a genuine science, a human science. the idea was to develop those tendencies of jurisprudence that focus solely on cognition of the law rather than on the shaping of it, and to bring the results of this cognition as close as possible to the highest values of all science: objectivity and exactitude.

Today I note with some satisfaction that I have not remained alone in pursuing this course. in all the developed countries, I have found heartening approval in every circle of an exceedingly diverse legal profession--theorists and practising lawyers alike --as well as among colleagues in related fields. a number of like- minded individuals have joined together in what is called my 'school', an appropriate label only in the sense that each of us makes an effort to learn from the others without abandoning his own programme. There are also those, not inconsiderable in number, who adopt fundamental positions of the Pure Theory of Law without subscribing to it, sometimes without naming it, indeed even while flatly and less than amiably rejecting it. I am especially grateful to them. For even against their will, they, better than the most faithful followers, bear witness to the usefulness of my theory.

Alongside recognition and imitation, the Pure Theory of Law has prompted an impassioned resistance rarely seen in the history of legal science, a resistance that cannot be explained by the material differences it brings to light. For these differences are based in part on misunderstandings, which, in addition . . .

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