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Article

The legal conceptions of Hans Kelsen and Eugen Ehrlich: weighting human rights and sovereignty

Revista Direitos Fundamentais & Democracia. 2016. Vol. 20. P. 39-73.

This paper considers the relevance of the legal conceptions put forward by Eugen Ehrlich and Hans Kelsen to the contemporary debate on human rights and their limits. It is asserted that the conceptions of Ehrlich and Kelsen adopt a multifaceted approach to the law and, at the same time, a philosophical perspective that secures human autonomy and freedom from “great narratives” and governmental intervention. This perspective opens up a variety of opportunities for better understanding the balance between individual and collective interests, and between the significance of rights and sovereignty. Both conceptions are still relevant to debates in the fields of international and constitutional law, and to legal philosophies about the limits of human rights and the epistemic conditions for identifying these rights, and how these rights can the same time lay claim to a universal character while remaining culturally embedded. The principle of relativity that underpins the Pure Theory of Law of Kelsen and the legal sociology of Ehrlich are of particular importance for discussing the “relative universality” of human rights.