Pure Theory of Law
Pure Theory of Law is a book by jurist and legal theorist Hans Kelsen, first published in German in 1934 as Reine Rechtslehre, and in 1960 in a much revised and expanded edition.
Kelsen began to formulate his theory as early as 1913, as a "pure" form of "legal science" devoid of any moral or political, or at a general level sociological considerations.
[1] The impact of the book has been enduring and widespread, and it is considered one of the seminal works of legal philosophy of the twentieth century.
[2] An early proponent of positivism was John Austin, who, following Jeremy Bentham, viewed law as commands from a recognized source (i.e., a sovereign) backed up by threat of sanctions where the subjects have a duty to obey.
[citation needed] Positivism traditionally says that the existence of a legal system in a given society depends solely on structures of governance, and laws are whatever rules have been declared ("posited") and accepted, and which are recognized by officials as authoritative (legislation, judicial decisions, etc.)
Kelsen considered the ideas he expounded in the first, 1934 edition of Pure Theory of Law as "a further development of approaches ... that have been introducing themselves by the positivistic jurisprudence in the nineteenth century".
Here is a list of some of the most important terms that appear in Pure Theory of Law: The theme of "is" and "ought" is not original with Kelsen, but it runs through the entire book.
Kelsen viewed the law as a scheme of interpretation whose reality existed in meaning itself, as opposed to, say, the acts of a legislature which might draft a bill, debate it, vote on it, tally the "yeses", and declare it "passed" using some verbiage.
[17] In addition, there are precursors in his earlier writings, and further development after the second edition, as can be seen especially in his incomplete work General Theory of Law and State, published posthumously.
[18] Stanley Paulson wrote of this evolution, and proposed a periodization of Kelsen’s Pure Theory of Law in four phases:[18] Paulson quotes Carsten Heidemann's periodization as: "constructivist, transcendental, realist, and analytico-linguistic",[19] and a debate ensued in the literature about how best to interpret the evolution of Kelsen's thought in this area.
[20] Kelsen has been called the "twentieth century's foremost jurist and legal philosopher", and his book "the single most important intellectual achievement of contemporary jurisprudence".
This hierarchy is graphically represented as a pyramid, with the Constitutional block (France) at the top, followed by treaties and international agreements, which are above parliamentary legislation, and lastly, governmental regulations sitting at the bottom.
Its task is to document the Pure Theory of Law and its dissemination in Austria and abroad, and to provide information about it and encourage it continuation and development.
