Pure Theory of Law
The pure doctrine of law is a theory of positive law "absolutely", i. This means that it claims to be able to apply to any (= positive) legal system ever set by humans. The treatment of a superhuman right, the so-called natural law , is rejected as unscientific. The aim of the pure doctrine of law is to provide the scientific description of law from the foreign admixtures, etc. a. sociological , psychological , biological , religious , ethical and political kind. The pure doctrine of law represents the postulate of the separation between the sphere of being, i.e. H. Sentences about the factual and the ought, d. H. Sentences about normatives (method dualism).
Exemplary form of legal positivism
With his pure legal doctrine, Hans Kelsen is an example of legal positivism, which he is considered to be the most consistent and most influential representative of the legal philosophy of the 20th century. What legal positivism has in common is the emphasis on the strict scientific nature of jurisprudence , which is understood to mean a restriction to the law that can actually be experienced without recourse to metaphysical reasons. This leads to the assumption of the separation thesis and the relativity thesis, which is also fundamental for pure legal theory.
Relativity thesis / criticism of natural law
The relativity thesis denies human knowledge of an absolute norm and is therefore based on an ethical noncognitivism or a value relativism . With reference to the historically emerging, highly different conceptions of unavailable, objective value standards, each value system turns out to be a cultural phenomenon and thus relative. There is no criterion of an objective nature - evident to humans - for judging the inner, moral correctness of a norm.
From this follows the separation thesis. Law and morality are two independent value systems. In simple terms, law is the law in force "as it is". Morality, on the other hand, describes the law “as it should be”. To that extent, morality stands for the idea of a critical standard for law. For Kelsen, justice is a partial aspect of morality and, as he explains, an irrational ideal that is incompatible with science. This means that every legal norm, regardless of its content, is to be regarded as valid if it only came into being according to existing legal norms. "[...] Therefore, any content can be right."
It should be noted here that Kelsen makes a strict distinction between “validity” (i.e. the “specific existence” of a norm) and “binding force”, i.e. i. the moral question of whether one adheres to the norm or breaks it - according to Kelsen, this can only be decided by each individual for himself; there can be no objective standard.
Kelsen later expanded the separation thesis. In the posthumously published General Theory of Norms (1979) he universalizes the separation thesis to the effect that the “validity” ( positive existence ) of every norm order, be it e.g. B. a certain social morality, a certain state or supranational legal order or a religious community, cannot depend on the content-related agreement with another norm order.
Positive law theory
The legal concept is equated with the existence of legal norms that characterize positive law . This understanding makes it possible to decouple jurisprudence from patterns of action such as morality or politics , thereby releasing it from ideological phenomena. This narrowing of the legal concept means that the law appears as the will of the state . According to Kelsen, law is an order of any compulsory norms, understood as a purely formal category. Its overall validity is conditioned by the effectiveness of its compulsion. The term positive law therefore means that failure to act as required by law can result in legally organized coercive measures. A justification of compulsion going beyond this is not required in order to recognize something as right, since its justification must come from the area of the non-empirical ought ( metaphysics ) and therefore cannot be the subject of pure legal theory.
In the later phase of his work the emphasis shifts away from the necessity of the compulsive character. Although it is "essential" for legal systems that they can also enforce their orders, in general terms, a normative system only has to provide for some form of "sanction", e.g. B. also the reprimanding disapproval or the honorable praise by the members of society.
This legal theory (of established law) gained acceptance in the first half of the 20th century at the latest. For Félix Somló , legal power resulted from the responsible state itself and other sources of law were derived from it, although it was later attested that the creation of room for maneuver for democracy - in contrast to the theory of natural law - showed traces of ideological quality. The law moved to the center of the doctrine of legal sources and jurisprudence at the expense of scientific law .
Adoption of the basic norm
According to the neo-Kantian view, the categories “to be” and “ought” are to be strictly separated. Neither an ought can be derived from a being (“because judge R said it, thief D should be in prison”), nor an ought from an ought (“because one shouldn't steal , thief D is in prison”). Only one could If another Shall follow ( "Because we follow the rulings of judges should , should one sentencing thief D note"). Since a norm is nothing more than an ought arrangement, its validity can only be derived from another norm - which is higher in the hierarchy of the legal order . This leads to an infinite recourse against a respectively presupposed norm, the validity of which must again have a validity. In order to limit this recourse, Kelsen introduced the so-called basic norm, a term that the Austrian international lawyer Alfred Verdross (1890–1980) had already devised in 1921 in his work “The Unity of the World View of International Law”. The basic standard is not set and has no content. It is required to complete a legal system in itself. The basic norm is therefore a transcendental logic requirement. On this basis, a legal system is then defined as the totality of norms that can be traced back to a basic norm. In the 1st edition of the "Pure Legal Doctrine" (1934), Kelsen took his basic norm as a hypothesis. In the 2nd edition (1960) he starts to view the basic norm as "fiction".
“The reasoning behind the basic norm is: the justification of the validity of norms that form a positive moral or legal order [...]. This goal can only be achieved through fiction. It should therefore be noted that the basic norm in the sense of Vaihinger's as-if philosophy is not a hypothesis - as I have occasionally characterized it myself - but a fiction that differs from the hypothesis in that it is accompanied by consciousness or but it should be accompanied so that reality does not correspond to it [...] "
Relation to other teachings
The pure doctrine of law is opposed to natural law , but also to the sociological law school of Max Weber and Eugen Ehrlich . Their legal concept, which is based on submission and coercion, is ultimately based on power .
One of the main antipodes of the pure legal theory was Carl Schmitt .
- Axiom (compared to the basic norm as a hypothesis )
- Pure legal theory , 1st edition, Leipzig and Vienna 1934 (2nd edition: Vienna 1960).
- Pure Theory of Law. Introduction to legal problems . Ed .: Matthias Jestaedt. Study edition of the 1st edition 1934. Mohr Siebeck, Tübingen 2008, ISBN 978-3-16-149703-2 .
- Pure Theory of Law. With an appendix: The Problem of Justice . Ed .: Matthias Jestaedt. Study edition of the 2nd edition 1960. Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-152973-3 .
- Carsten Heidemann: The norm as a fact: on Hans Kelsen's theory of norms . (also dissertation at the University of Kiel 1995/96). Nomos-Verlagsgesellschaft 1997. ISBN 3-7890-4664-7 .
- Matthias Jestaedt , Ralf Poscher and Jörg Kammerhofer (Eds.), International Association for Legal and Social Philosophy (author): The pure legal theory on the test bench: Conference of the German section of the International Association for Legal and Social Philosophy from 27.-29. September 2018 in Freiburg im Breisgau = Hans Kelsen's pure theory of law: conceptions and misconceptions . (Conference publication 2018. Freiburg im Breisgau: Contributions partly in German, partly in English). Franz Steiner Verlag, Stuttgart 2020. ISBN 978-3-5151-2568-0 .
- Andreas Kley , Esther Tophinke: Overview of the pure legal theory by Hans Kelsen . In: Legal worksheets . tape 33 , no. 2 , 2001, p. 169–174 , doi : 10.5167 / uzh-3896 ( uzh.ch - title of the printed edition: Hans Kelsen und die Reine Rechtslehre ).
- Brigitte Lanz: Positivism, value relativism and democracy with Hans Kelsen . (also dissertation at the University of Potsdam 2006). dissertation.de, Berlin 2007. ISBN 978-3-8662-4178-7 .
- Robert Walter (ed.), Alfred Schramm (author): The circle around Hans Kelsen: the early years of the pure legal theory . [Biography], Manz, Vienna 2008. ISBN 978-3-2140-7676-4 .
- Entry in the Stanford Encyclopedia of Philosophy
- Reception and role of pure legal theory - Lecture by Horst Dreier (archive version, PDF file; 71 kB)
- The author of the separation thesis is John Austin : The Province of Jurisprudence Determined . (1832). Cambridge 1985, pp. 184 ff .; It was shaped by HLA Hart : Positivism and the Separation of Law and Morals . In: Harvard Law Review 71 (1958), pp. 593-629 .; See also: Florian Rödl: On the criticism of right-wing positivist conception of human rights . In: Margit Wasmaier-Sailer, Matthias Hoesch (ed.): The justification of human rights. Controversies in the area of tension between positive law, natural law and law of reason , (= Perspektiven der Ethik 11), Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-154057-8 , pp. 29–42 (33).
- Hans Kelsen : Pure legal theory: Introduction to the legal problem. Deuticke, Leipzig / Vienna 1934; 2nd edition: Deuticke, Vienna 1960, p. 201.
- Hans Kelsen : Pure legal theory: Introduction to the legal problem. Deuticke, Leipzig / Vienna 1934; 2nd edition: Deuticke, Vienna 1960, p. 402 f.
- Hans Kelsen: Main problems of constitutional law, developed from the doctrine of legal propositions . 2nd edition, Mohr, Tübingen 1911, p. 97.
- Hans Kelsen: General theory of norms. On behalf of the Hans Kelsen Institute from the estate ed. by Kurt Ringhofer and Robert Walter . Manz, Vienna 1979, p. 18 f.
- Mehrdad Payandeh : Judicial Generation of Law. Theory, dogmatics and methodology of the effects of prejudices. Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155034-8 , p. 66.
- Félix Somló : Legal basic theory , 1917. Online Archive , p. 330.
- Kathrin Groh: Democratic constitutional law teachers in the Weimar Republic , Tübingen 2010, p. 113 f.
- Jan Schröder : The relationship between legal dogmatics and legislation in modern legal history (using the example of private law). In: Okko Behrends , Wolfram Henckel (Ed.): Leggings and Dogmatik , 1989, pp. 37 ff. (55).
- Franz Wieacker : History of private law in the modern era with special consideration of German developments. Vandenhoeck u. Ruprecht, Göttingen 1952, 2nd edition 1967, pp. 458 ff. (Transition from scientific positivism to legal positivism).
- Hans Kelsen: General theory of norms. On behalf of the Hans Kelsen Institute from the estate ed. by Kurt Ringhofer and Robert Walter. Manz, Vienna 1979, p. 206 f.