Философия права Ганса Кельзена: релятивизм и переосмысление причинности
In this paper the basic princips of the legal theory of Hans Kelsen are summarized.
The second edition of Hans Kelsen’s «Pure Theory of Law» is one of the 20th cen- tury’s key works in legal theory and philosophy of law. The book appeared in 1960, and since then it has been attracting the attention of legal scholars. In particular, it is the point of departure for discussions of legal epistemology. Up to now «Pure Theory of Law» has been the most coherent version of legal positivism. The normativist in- terpretation of law put forward in this book gave rise to huge amounts of secondary literature. The Russian translation of the book will be useful for both faculty and students of law schools. In particular, it is indispensable for teaching legal theory, history of legal and political doctrines, and philosophy of law. It will also be helpful to everybody interested in legal theory.
In this article the author examines the democracy theory of Hans Kelsen. The author accentuates the connection between the democracy theory and the theory of the stepwise legal order (Stufenbau) in Kelsen’s doctrine. Connecting these two theories allows understanding originality of Kelsen’s conception of law and state. According to Kelsen, the issue of democracy is about participation of people at all the stages of law enforcement, and not only at the stage of adopting of laws by a parliament elected by people.
A number of puzzles surround Kelsen’s doctrine of the normativity of the law. What, exactly, does it mean? Some writers in analytical jurisprudence have attributed a “justified” or “contentual” normativity thesis to Hans Kelsen. One representative of this view, Joseph Raz, goes so far as to claim that the “justified normativity thesis” defended by Kelsen is an expression of traditional natural law theory. In the present essay it is argued that a “justified” or “contentual” normativity thesis forms no part of Kelsen’s theory, and the point is demonstrated textually. Rather, Kelsen defends a “modal” normativity thesis. Support for this thesis in Kelsen’s writings is drawn from Kelsen’s analogy between causality in the physical sciences and peripheral imputation in the law. The latter, as Kelsen argues, provides the underlying Gesetzlichkeit of the law,* and one explication of the notion, explored in the present essay, draws on a Neokantian notion, namely, Heinrich Rickert’s doctrine of methodological forms. The modal normativity thesis underscores the irreducible character of the law, but without making any claims respecting the content of the law.
In the book presents the papers and translations devoted to philosophycal and legal legacy of Hans Kelsen