基本説明
Relates Kelsen's views to modern legal theorists (including Hart, Raz and Dworkin), and contemporary debates in legal philosophy.
Full Description
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 the context 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 the binding 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 context of 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.
Contents
1. Introduction ; Three paradigms of legal positivism ; Kelsen's legal science ; Kelsen's legal politics and the identity of law and state ; Democracy, constitutionalism, and legal peace in Kelsen's utopia of legality ; 2. The Pure Theory of Law - Science or Political theory? ; Law and Nature - Subjective and Objective Legal Meaning ; Kelsen's theory of legal order ; Kelsen and theoretical anarchism: The pure theory as critique of ideology ; Conclusions on Law and Nature ; Law and Morality ; The pure theory as a theory of legal legitimacy ; Kelsen and the separation of law and morality ; Further questions ; 3. Kelsen's Principles of Legality ; Legal hierarchy and depersonalization of the state ; Kelsen's principle of legality I: Nullity ; Kelsen's principle of legality II: Voidability ; The sovereignty of law: The doctrine of normative alternatives reconsidered ; Further questions ; 4. Kelsen's Theory of Democracy - Reconciliation with Social Order ; Kelsen on the 'torment of heteronomy' ; The failure of the argument from deliverance ; Kelsen's defense of majority rule: The argument from reconciliation ; Freedom and Compromise: Democracy and constitutional entrenchment ; Kelsen's relativism ; 5. Democratic Constitutionalism - Kelsen's Theory of Constitutional Review ; Kelsen's conception of adjudication: Implications for a theory of review ; Kelsen on the concept of constitution ; Constitutional values and judicial role ; 6. Kelsen's Legal Cosmopolitanism ; Kelsen and the dogma of sovereignty ; Kelsen's doctrine of the unity of law - a defence ; On the viability of legal cosmopolitanism ; The moral relevance of Kelsen's legal cosmopolitanism ; VII. Conclusions - The Pure Theory of Law and Contemporary Positivism
