Язык правовой доктрины (в правовой концепции Ганса Кельзена)
In this paper the basic princips of the legal theory of Hans Kelsen are summarized.
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.
The Pure Theory of Law was initially designed by Hans Kelsen (1881–1973) as a project of purification of legal science from factual elements and ideology which have no place within this science. Examining the problem of natural law played an important role in carrying out this project, which can be seen in Kelsen’s works collected in this book. This role is demonstrated against the background of Kelsen’s masterpiece of the classical period, Pure Theory of Law (first edition), and some late (after 1960) publications of this author. In this volume are also published several research works written by the leading Western specialists in Kelsen’s legal philosophy. This book can be useful for specialists in legal theory, philosophy of law, history of legal and political thought, for students learning these disciplines, as well for all those who are interested in methodological problems of legal science.
In the work are summarized the basic tenets of the theory of validity of legal norms; the ideas of Kelsen about legal validity are critically analyzed.