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The Pure Theory of Law—Science or Political Theory?

Lars Vinx

in Hans Kelsen's Pure Theory of Law: Legality and Legitimacy

This chapter discusses Kelsen's claim that the Pure Theory of Law is a purely descriptive science of law. This Kelsenian self-understanding turns out to be questionable. Key elements of Kelsen's ... More

This chapter discusses Kelsen's claim that the Pure Theory of Law is a purely descriptive science of law. This Kelsenian self-understanding turns out to be questionable. Key elements of Kelsen's legal science — such as the distinction between subjective and objective legal meaning, the theory of legal order as legal hierarchy, the conception of the basic norm, Kelsen's rejection of anarchism, and his way of drawing the distinction between law and morality — appear unmotivated unless they are understood as elements of an implicit normative political-theoretical project. That project is identified as the aim to develop a legality-based conception of political legitimacy for a pluralistic society and to realize that conception in a utopia of legality.Less

Back to the Begriffshimmel? 1 A Plea for an Analytical Perspective in European Law

Niilo Jääskinen

in The Coherence of EU Law: The Search for Unity in Divergent Concepts

This chapter analyzes the Finnish analytical legal positivism in the forms it took from the 1950s to the early 1970s, and explores what kind of questions that approach would entail for the study of ... More

This chapter analyzes the Finnish analytical legal positivism in the forms it took from the 1950s to the early 1970s, and explores what kind of questions that approach would entail for the study of EU law. It argues that the message of analytical legal positivism may be relevant for the study of European law even today. It underlines the need to rethink and redefine the traditional conceptual apparatus used in legal reasoning and legal science.Less

The Pure Theory in Practice: Kelsen's Science of Law

David Dyzenhaus

in Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar

This chapter presents a summation of Kelsen's view of the nature of law and legal science and of the relation between law, state, and individual. It explores Kelsen's polemic against Schmitt, as well ... More

This chapter presents a summation of Kelsen's view of the nature of law and legal science and of the relation between law, state, and individual. It explores Kelsen's polemic against Schmitt, as well as his analysis if judgment of the court. It argues that the problems raised in this discussion make Kelsen more than a man of straw for Schmitt's critique. It then evaluates the pure theory itself with a view to seeing to what extent Schmitt's attacks on Kelsen hit their mark.Less

Law and Sociology: The Constitution and Confrontations of Disciplines

Roger Cotterrell

in Law's Community: Legal Theory in Sociological Perspective

How should law as a discipline or intellectual field be viewed sociologically? Indeed, what does it mean to speak of intellectual disciplines, and how can disciplines confront each other? Law and ... More

How should law as a discipline or intellectual field be viewed sociologically? Indeed, what does it mean to speak of intellectual disciplines, and how can disciplines confront each other? Law and sociology show similarities but also important contrasts in the way they are constituted as intellectual fields and in their strengths and weaknesses as such. Law's particular weaknesses have allowed sociological ideas to invade legal thought in certain contexts and conditions. But, perhaps ironically, the continuing importance of the sociological tradition as a source of enlightenment about law derives in very large measure from the intellectual consequences of sociology's own permanently insecure and ambiguous disciplinary status. It seems appropriate to locate the model of judicial decision-making at the centre of legal science, but only in so far as this decision-making is inseparably connected with the production or refinement of legal doctrine.Less

A Neo-Kantian Theory of Legal Knowledge in Kelsen's Pure Theory of Law? *

Stefan Hammer

in Normativity and Norms: Critical Perspectives on Kelsenian Themes

This chapter focuses on whether the Kelsenian doctrine of the basic norm can be reconstructed in neo-Kantian terms as the central element in a transcendental theory of legal knowledge. The first ... More

This chapter focuses on whether the Kelsenian doctrine of the basic norm can be reconstructed in neo-Kantian terms as the central element in a transcendental theory of legal knowledge. The first question then is whether the problematic that underlies Kelsen's doctrine of the basic norm can be regarded, structurally speaking, as epistemological in the neo-Kantian sense at all. Section I defends a positive answer to this question. Section II enquires how far the concept of the basic norm actually satisfies the requirements of a neo-Kantian argument on behalf of the cognition of objects. Finally, the chapter revisits the question of the adequacy of an epistemological approach in making a case on behalf of legal science generally.Less

The Application of the Rule of Inference to Norms

Hans Kelsen

in General Theory of Norms

This chapter discusses whether the syllogism of traditional propositional logic is applicable — directly or indirectly — to norms. The question is whether the logical thought-process of the syllogism ... More

This chapter discusses whether the syllogism of traditional propositional logic is applicable — directly or indirectly — to norms. The question is whether the logical thought-process of the syllogism occurs in morality and in law, that is, in the process of creating and applying morality and law, and not whether it occurs in moral science and legal science. The latter is beyond question (it is obvious), since inferences have their place in all thought-processes, and thus in all sciences, and so in moral and legal science. But the extremely frequent confusion of morality and moral science and of law and legal science obscures the problem and prevents a clear answer being given to the question being considered.Less

Danger of Grave Abuses: Attacks on the Legitimacy of Advisory Opinions

Mel A. Topf

in A Doubtful and Perilous Experiment: Advisory Opinions, State Constitutions, and Judicial Supremacy

After the first appearance of an advisory opinion provision in 1780, nothing much happened until the Massachusetts constitutional convention of 1820, where Joseph Story was the first person in ... More

After the first appearance of an advisory opinion provision in 1780, nothing much happened until the Massachusetts constitutional convention of 1820, where Joseph Story was the first person in American history to attack advisory opinions as a threat to an independent judiciary. This chapter offers that narrative, and attributes Story’s position to his vision of a legal science as a protection against the ever-present threat of the politicization of the judiciary. He saw advisory opinions as a menace to this vision. After, the spreading attacks on advisory opinions were reinforced by the striking rise in stature of the judiciary in America. This chapter discusses the history and nature of the attacks on advisory opinions, especially attacks based on separation of powers and due process. It considers the states that have rejected advisory opinions on these grounds, and argues that there has arisen a jurisprudence of rejection by which nonadvisory opinion jurisdictions reject cases that are seen as advisory opinion requests in disguise—for example, as declaratory judgment actions.Less

Normativism or the Normative Theory of Legal Science: Some Epistemological Problems *

Riccardo Guastini

in Normativity and Norms: Critical Perspectives on Kelsenian Themes

Normativism or the normative theory of legal science represents an attempt to describe (and to rationalize) the actual practice and thinking of contemporary jurists. On the one hand, what jurists say ... More

Normativism or the normative theory of legal science represents an attempt to describe (and to rationalize) the actual practice and thinking of contemporary jurists. On the one hand, what jurists say (and think) they are doing when they interpret the materials that are usually termed ‘sources of law’ (statutes, judicial precedents, regulations, and the like) is nothing more than a description of norms; and the norms themselves are conceived of as ‘data’ that precede the interpretations offered of them. (Norms precede their interpretations, which is to say that their existence precedes the interpretative activity directed to them.) On the other hand, jurists in fact typically provide statements of norms in a deontic language — in a language that is to say, that is syntactically indistinguishable from the language used to give expression to the norms themselves. And the normative theory of legal science recommends precisely this approach.Less

Comparative Law’s Coming of Age? Twenty Years after Critical Comparisons †

Peer C. Zumbansen

in Comparative Law as Transnational Law: A Decade of the German Law Journal

This chapter reflects on the legacy of Günter Frankenberg's seminal critique of comparative law theory, “Critical Comparisons,” published in 1985, on the occasion of its twentieth anniversary. After ... More

This chapter reflects on the legacy of Günter Frankenberg's seminal critique of comparative law theory, “Critical Comparisons,” published in 1985, on the occasion of its twentieth anniversary. After a brief reconstruction of the article's main contentions, it is situated within a larger dialogue among comparativists and legal theorists, who are striving for a transnational legal science.Less

The Problems of Legal Philosophy

Alf Ross

in On Law and Justice

This chapter identifies the only perspective that can make the doctrinal study of law compatible with the methodology of empirical science. The chapter begins with a brief survey of the themes and ... More

This chapter identifies the only perspective that can make the doctrinal study of law compatible with the methodology of empirical science. The chapter begins with a brief survey of the themes and trends in current ‘legal philosophical’ literature. It considers how the ‘nature’ of law poses a constant and fundamental problem to ‘legal philosophy’, and then analyses the concept of ‘scientifically valid law’ in accordance with the methodology of empirical science. Using the analogy of studying chess and chess rules, a behaviourist approach is considered and rejected. Instead, the chapter proposes the adoption of an ‘introspective method’ to the scientific study of validity. It is argued that when adopted in a ‘norm-descriptive’ and not a ‘norm-expressive’ way, introspection is philosophically acceptable and compatible with empirical science. This is followed by an overview of the branches of legal science. It is argued that legal philosophy is concerned with jurisprudential problems but in a different spirit than the way in which jurisprudence itself is. Legal philosophy does not aspire towards ‘solving’ these problems but merely seeks to analyse them with reference to implicit logical premises. Legal philosophy is not part of positive legal science but a discipline which is independent from it, and with specific problems and a specific method.Less

The Rhetoric of Criminal Law: Sloganism and Other Coping Mechanisms

Markus D. Dubber

in The Dual Penal State: The Crisis of Criminal Law in Comparative-Historical Perspective

Dual Penal State is about the collective failure to address the fundamental challenge of legitimating the threat and use of penal violence in modern liberal states. The first part of the book ... More

Dual Penal State is about the collective failure to address the fundamental challenge of legitimating the threat and use of penal violence in modern liberal states. The first part of the book investigates various ways in which criminal law doctrine and scholarship have managed not to meet the continuing challenge of legitimating state penal power: the violent violation of the autonomy of the very persons upon whose autonomy the legitimacy of state power supposedly rests in a state under the rule of law (Rechtsstaat). Part I focuses primarily on German criminal law, and German criminal law science, with regular comparative glances beyond the German penal system. Chapter 2 highlights several key rhetorical strategies in modern criminal law doctrine that divert attention from the troubling—and possibly irresolvable—paradox of state punishment in a modern liberal democracy.Less

Artes Urbanae: Roman Law and Rhetoric

Olga Tellegen-Couperus and Jan Willem Tellegen

in New Frontiers: Law and Society in the Roman World

Is law a science? That question has triggered much discussion among modern lawyers. However, the question: was Roman law a science? has hardly been discussed by Romanists. For more than two ... More

Is law a science? That question has triggered much discussion among modern lawyers. However, the question: was Roman law a science? has hardly been discussed by Romanists. For more than two centuries, they have assumed that it was. Kaser described legal science as the development of legal concepts that are well determined as to content and clearly separated from each other, and that are ordered and linked together in a logical system. Roman law was assumed to fit that description and, as such, to form a contrast with rhetoric that definitely was not a science. However, is this assumption correct? In the 20th century, Stroux and Viehweg argued it is not, but their view had little impact. Horak concluded that Roman law can partially be regarded as a science because the argumentation used by the Roman jurists to support a particular view was often based on logic. In this chapter, the view is supported that the ways of argumentation that Horak regards as based on logic are in fact based on rhetoric, and that Roman law was not a science in the modern sense. By way of example, texts from Gaius’ Institutes and Justinian’s Digest are discussed.Less

From the Norman Conquest to the Establishment of Consistory Courts

R. H. Helmholz

in The Oxford History of the Laws of England: The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s

This chapter focuses on the growth of European legal science in general and the formation of the classical canon law in particular. It also talks about three separate developments: first, the English ... More

This chapter focuses on the growth of European legal science in general and the formation of the classical canon law in particular. It also talks about three separate developments: first, the English clergy's effort to separate the spiritual from the temporal in law and legal practice; second, the spread of canonical learning in England; and third, the settling of administrative and judicial practice into a fixed shape. The chronological period covered by this chapter took place against the backdrop of a great movement for reform of the church. With that movement of thought came also the emergence of active papal government, reaching down into the smallest corners of the household of the church. The quieter tides of change surveyed in the last parts of this chapter are ultimately more important to the spread of the canon law, but famous events also played a part.Less

Is There a Specifically ‘Juristic’ Logic?

Hans Kelsen

in General Theory of Norms

In juristic literature, it is sometimes claimed that the logic legal science makes use of — and in particular, the logic applied to legal norms — is not general formal logic, but a different, ... More

In juristic literature, it is sometimes claimed that the logic legal science makes use of — and in particular, the logic applied to legal norms — is not general formal logic, but a different, specifically ‘juristic’, logic. This view is the object of dispute. The Polish logician Kalinowski firmly rejects it. The Belgian philosopher Ch. Perelman firmly supports it. The instances usually advanced in favour of the existence of a specifically juristic logic are the so-called analogical inference which jurists make use of and the argumentum a maiore ad minus which they constantly employ.Less

Engaging Scholarship: Criminal Law and the Legitimation of Penal Power

Markus D. Dubber

in The Dual Penal State: The Crisis of Criminal Law in Comparative-Historical Perspective

Dual Penal State is about the collective failure to address the fundamental challenge of legitimating the threat and use of penal violence in modern liberal states. The first part of the book ... More

Dual Penal State is about the collective failure to address the fundamental challenge of legitimating the threat and use of penal violence in modern liberal states. The first part of the book investigates various ways in which criminal law doctrine and scholarship have managed not to meet the continuing challenge of legitimating state penal power: the violent violation of the autonomy of the very persons upon whose autonomy the legitimacy of state power supposedly rests in a state under the rule of law (Rechtsstaat). Part I focuses primarily on German criminal law, and German criminal law science, with regular comparative glances beyond the German penal system. Chapter 1 explores the failure of a parochial and self-referential conception of criminal law as science to engage with fundamental questions of legitimacy.Less

Frank Goodnow and the False Cosmopolitanism of Technocracy

Jedidiah J. Kroncke

in The Futility of Law and Development: China and the Dangers of Exporting American Law

This case study illustrates the larger trends in American legal internationalism that occurred during this era by looking at famed comparativist Frank Goodnow’s mission to write the new Chinese ... More

This case study illustrates the larger trends in American legal internationalism that occurred during this era by looking at famed comparativist Frank Goodnow’s mission to write the new Chinese constitution in 1913. Sponsored by a mix of public and private actors, his tenure in China turned to acrimony after he became involved in an attempt to revert China to a monarchy and not to export American republicanism. His banishment from American foreign affairs reflected his resistance to the missionary view of foreign legal reform work, notably as Goodnow, like many Progressive reformers, was deeply critical of American law. However, his failure in China was also grounded in his disregard for Chinese politics and represented the false hope of the increasingly technocratic view of legal science favored in foreign reform work.Less

Revocability of Mutual Wills

Alexandra Braun

in Exploring the Law of Succession: Studies National, Historical and Comparative

This chapter evaluates the contribution of seventeenth-century Dutch legal science in the revocation of mutual wills and its influence on the legal science of Europe. It outlines the development of ... More

This chapter evaluates the contribution of seventeenth-century Dutch legal science in the revocation of mutual wills and its influence on the legal science of Europe. It outlines the development of the ius commune up to the eighteenth century and compares the evolution of the law from the eighteenth century onwards in some jurisdictions where mutual wills are still in use, such as Germany, England, Scotland, and South Africa. The chapter argues that the Roman-Dutch solutions to the problems concerning the revocation of mutual wills have influenced the jurists and courts of a large part of the European continent, and were also eventually adopted in England.Less

Introduction: Popular Sovereignty, Constitutionalism, and the Civil Law

Daniel Lee

in Popular Sovereignty in Early Modern Constitutional Thought

This introductory essay concerns the function of popular sovereignty in modern constitutionalism. Perhaps the central interpretive problem concerning popular sovereignty concerns the doctrine’s ... More

This introductory essay concerns the function of popular sovereignty in modern constitutionalism. Perhaps the central interpretive problem concerning popular sovereignty concerns the doctrine’s compatibility with constitutionalism. In short, how can popular sovereignty be understood to be a central feature of modern constitutionalism? The chapter addresses this concern by arguing that popular sovereignty should be understood principally as a constitutive, rather than as a regulative, doctrine of public authority. I also discuss how the legal science of Roman law functioned as the discursive vehicle by which late medieval and early modern jurists crafted the doctrine of popular sovereignty.Less

[261]The Legal System

Alf Ross

in On Law and Justice

Legal material can be systematically divided on the basis of various considerations and criteria. There is no ‘true’ or ‘correct’ system as such, but a division of the system can be regarded as more ... More

Legal material can be systematically divided on the basis of various considerations and criteria. There is no ‘true’ or ‘correct’ system as such, but a division of the system can be regarded as more or less right and proper. The traditional divisions are characterized by a blend of both internal criteria, that is, criteria connected with fundamental features of the structure or content of the legal rules and, thereby, with the fundamental concepts of legal science; and external criteria, that is, criteria which subsume the legal rules in accordance with their application in considering certain typical areas of life. This chapter examines to what extent the traditional way of dividing up topics is determined by, or can be adjusted to, rational and internal criteria.Less

The Nature of Sovereignty

Hermann Heller

David Dyzenhaus (ed.)

in Sovereignty: A Contribution to the Theory of Public and International Law

This chapter discusses the nature of sovereignty, covering the sovereign state person and sovereignty as a characteristic of the state. It suggests that a dominant tendency of legal science is to see ... More

This chapter discusses the nature of sovereignty, covering the sovereign state person and sovereignty as a characteristic of the state. It suggests that a dominant tendency of legal science is to see in the state person a “fictional person” [persona ficta], a purely ideal normative subject, and to merge this with the impersonal legal order. However, there can be no norm-logical imputation without constant reference to nomological knowledge, without insight into the regularities of causal connections. Jurists should separate imputation and causation just as they do normative and psychological will; but for specific juristic reasons, these cannot be torn apart.Less