Norman's Theory of Law by G. Kelzen
Hans Kelsen (1881-1973) is an Austrian lawyer, founder of the theory of legal normativism, or "pure doctrine of law"; Professor at the Vienna, Cologne and Geneva Universities; the founder of the concept of the constitutional court and constitutional control, the founder and judge of the first such court - the Austrian Constitutional Court.For many years, G. Kelsen took an active part in the political life of his country: he drafted the Constitution of the Austrian Republic of 1920, which legally formalized the formation of the Austrian Republic. In 1921 - 1929 years. - served as judge of the Constitutional Court of Austria. In the years 1930-1933. - taught at the University of Cologne. In 1933, fleeing Nazi persecution, he emigrated from Germany, after which he lived at first in Switzerland, and from 1940 settled in the United States. There from 1942 until the end of his life he was a professor at the University of California.
The main hundred works are: "The problem of sovereignty and the theory of international law (1920); Sociological and legal concepts of the state " (1922); The pure doctrine of the right (1934, 2nd extended edition of 1960); Society and Nature (1943); "Political Theory of Bolshevism (1951); "What is justice?" (1957).
F. Kelsen is the ancestor and the largest representative of normativism, political and legal doctrine, rooted in the formally legal dogmatic jurisprudence of the nineteenth century.Normativism has developed on the basis of a methodology developed in legal positivism, and represents a reaction to the spread in the Western jurisprudence of that time of sociological, psychological and new ethical and philosophical concepts. The basic ideas of normativism are reflected in the "pure doctrine of the right."
G. Kelsen's doctrine of right is called "clean" because it only deals with the law and "clears" cognizable object from everything that is not a right in the strict sense of the word. Called clean The theory of positive law was built, which, in its purity, refused to study all elements alien to positive law. "The pure doctrine of law is the theory of positive law: positive law in general, and not of any particular legal order." According to Kelsen, only that which can be found in the content of positive legal norms pertains to the field of legal understanding.
In addition, Kelsen called his theory of law "clean" because he considered it cleared of all non-legal - i.e. from the influence of related sciences (psychology, sociology, ethics, political theory), from ideological assessments. As a theory, it seeks only one thing: to know one's subject. It tries to answer the question of what is right and how it is, but not on the question of how it should be or be created. It is a right-wing, but not a policy of law, "G. Kelsen noted. "And if the pure doctrine of law wants to delimit the knowledge of law from related disciplines, it is not because it does not notice or even denies this connection, but because it wants to avoid methodological syncretism that obscures the essence of jurisprudence and lubricates the boundaries intended for it the nature of his subject. "
According to Kelsen, the law should be self-explanatory as an independent unit, in isolation from social being. This means that with this approach, the content of the legal norm, its relationship to reality, to the material conditions of life and the interests of individuals can in a sense be ignored, i.е. are left out of sight of the legal science.
Net theory of law - this is a kind of structural analysis of positive law, which deals only with the dogma of law, without taking into account the psychological, economic and other facts that affect its content.
Right, according to Kelsen, this is the normative order of human behavior, but not the behavior itself. Law is a system that regulates human behavior norms. These norms imply that something must be and that a person must act in a certain way. Recognizing the dualism of due and existential, Kelsen distinguishes between the concepts norm and "will act". It should be borne in mind that the norm as the specific meaning of an act intentionally directed at the behavior of others is not the same as an act of will, the meaning of which it constitutes. After all, the norm is an obligation, and the act of will, the meaning of which it (the norm) is, is the being (being). " Pursuit norms always has an objective meaning, and "this is manifested in the fact that the behavior to which the act is intentionally directed is taken for granted not only from the point of view of the person who carries out this act, but also from the point of view of the third, disinterested person." The enforcement of the norm does not disappear even when there is no will or the addressees of the norm know nothing about it. The objective meaning of the obligation is the norm given to another, higher norm.
The key concept of normative theory is the notion of the basic norm ( Grundnorm ). The basic norm is not an act of will, but this reality is not directly related to the will of the state. This norm, worked out by the human mind, is not an established, but a postulated norm. Using Kant's terminology, Kelsen calls the basic norm "the transcendental-logical postulate". The basic norm is the norm of obligation, from which the validity of other norms follows. From the basic norm, uniform for all other norms, the basis and the maintenance of the last is deduced. So, for example, the norms: "Do not lie", "Do not cheat", "Do not perjure", "You must fulfill this promise" - you can deduce from the norm prescribing truthfulness. From the norm prescribing to love one's neighbor, it is possible to derive the following norms: "One must not harm his neighbor, in particular, kill him," "He should not cause his neighbor moral or physical harm." "If a neighbor gets into trouble, he should be helped." Some believe that the norm prescribing truthfulness and the norm prescribing love for one's neighbor can be derived from a common higher norm: for example, from the norm prescribing to preserve harmony with the universe. Then it can be based on a comprehensive moral order. Since all norms belonging to the order of this type are already contained in the content of the postulated norm, they can be derived from it by means of a logical operation of the transition from the general to the particular. This norm, postulated as the main one, provides both the basis of reality ( Geltungsrund ) and the content of the validity ( Geltungsinha.lt ) of norms that are derived from it by a logical operation. The system of norms, the basis and content of which is derived from a single norm, postulated as the main rule, is a static regulatory system. The principle, according to which the validity of the norms of this system is justified, is the static principle
Sometimes the basic rule can provide only the basis, but not the content of the validity of norms based on it. G. Kelsen gives the following example: "The father orders the child to go to school. On the child's question why he should go to school, you can answer: "Because so ordered by the father, and the child must obey the orders of the father." If the child then asks: "Why should I obey the orders of the father?", He can answer that God ordered to obey his parents, and the orders of God must be fulfilled. If the child asks why he should obey God's orders, that is. the reality of this norm will be called into question, then in response it can only be said that this norm can not be called into question, that is, that it is impossible to seek a basis for reality, that this norm can only be postulated. But the content of the norm, which in our example served as the starting point ("The child should go to school"), it is impossible to deduce from this basic rule through the logical operation & quot ;. In this case, the basic rule is limited to the delegation of normative power, i. the establishment of a rule in accordance with which the norms of this system should be created. The starting norm is valid not because of its content, but because it is created in the way provided by the basic rule (established by an act of the will of the father). The basic rule in this example can provide only a basis, but not the content of the validity of norms based on it. Such norms form a dynamic regulatory system. The principle, according to which the validity of the norms of this system is justified, is the dynamic principle .
With the help of the basic norm, law reaches unity and forms a stepwise hierarchical order in which the lower forms flow from the higher. In this hierarchy of norms, the subsequent norm appears as higher norm, and the whole system of norms as a whole goes back to the basic norm. "However, the search for the basis of the validity of a norm can not continue indefinitely. As the highest norm, it must be postulated, since it can not be established by a power authority: otherwise the competence of this instance would have to be based on some even higher norm. The validity of the highest norm can not be derived from some higher norm, and the question of the basis of its reality can no longer arise. Such a norm, postulated as the highest, is called here the basic norm. All norms, the validity of which can be derived from the same basic rule, form a system of norms, a normative order. The basic norm is the general source of the validity of all norms belonging to the same order, their common ground of reality. "
The main rule is the starting point of the procedure for creating a positive right. The highest level of law - the constitution - is derived from the basic rule that postulates: "Should behave as prescribed by the constitution". Further in the descending stage follows the laws and general norms that are derived from the constitution. The lowest level is formed by the so-called individual norms created by the court and management bodies in relation to individual legal situations, they are derived from the norms of the higher levels.
The determining element of the law, allowing to distinguish right among other social norms, is its compulsory nature. In the interpretation of the relationship between law and government, law and the state, the positivist tradition comes out most clearly. The inclusion in the definition of the right element of coercion takes into account the relationship between law and the state, which exists in the most important case for the legal knowledge - in the case of the law of the modern state. After all, the state is primarily a compulsory order, and a centralized compulsory order with a limited territorial sphere of reality. " The above definition of the state testifies to the identification of G.Kelzen with law and the state. The state, from this point of view, is only the result of the operation of the rule of law.
In the clean The theory of law Kelsen set the task of overcoming the dualism of law and state, comparing it with the theological task of solving the "theological dualism of God and the world." "As a path to a genuine knowledge of nature, pantheism identifies God with the world (that is, with the natural order)," Kelsen noted, "just as the identification of the state with the law, the recognition that the state is the rule of law, is the prerequisite for genuine legal knowledge . But if we see the identity of the state and law, if we understand that the law (a positive law that should not be equated with justice) is the same order of coercion as the state appears to jurisprudence that does not wither in anthropomorphic metaphors, but through the veil of personifications breaks through to the norms established by human acts, then it is simply impossible to justify the state by means of law ... Just as it is impossible to justify a right by means of the right ... in the sense of "right" law, i.e. justice .
F. Kelsen denies the liberal idea of the rule of law. Attempts to legitimize the state as a "legal" state are completely unsuccessful, because, as already mentioned, every state is a legal state in the sense that it represents the rule of law. The aspiration to give out for a lawful state only that which meets the requirements of democracy and legal security is a prejudice based on the theory of natural law. "
The positive value of the normative doctrine is the proclamation of the idea of legality, in recognition of the normative nature of law.
The weakness of this doctrine is manifested in an artificial separation of the right from other phenomena of reality and, above all, from the economic conditions of society. Comprehending the state, expressed only in legal norms, the state as a legal institution, as a scientific construct, normativism is conditionally locked in the scheme of its subject, in static and inevitably misses the dynamics of living phenomena.
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