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    teori hans kelsen

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    11 views48 pages

    Kelsen - Intro To The Problems of Legal Theory

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    Satria Pratama
    teori hans kelsen

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    INTRODUCTION TO THE PROBLEMS OF LEGAL THEORY by HANS KELSEN, Temi ofthe Fe lion of te reo Pure Theory of Lae sranslated by Bonnie Litschewaki Paulson id Stanley L, Paulson swith an Introduction by Stanley L Paulson CLARENDON PRESS“ OXFORD "Ths ot hase re gray od da tr on ‘eorderorne ctinse omsay OXFORD etched Sse Ox OX 6D xt alert Fei departs fh Univers of Oxo ‘shen he Vays tre of ctene ee, sp “nd eden palais we in ‘Oxted Yew Yor Avctand Dangle None Aes Cape Town Chena Dirershnm Delt Hoye ong abl Hore oats rut itapur Mad Mette Mesce iy Mumba tobi So Reulo StngbtSngipore Tape Tayo Trot vith pete capri ‘ois eg ade mark xr ies ress nthe andi crane cnt ty ona ivy rer nc Re York (© toni iscewsk Pui and Sly aon 188 © 1904y Frans Dowie, Ves ‘he mora rights ofthe share ben aera Date EN Osrd Univer Pres es pened 202 ee woriharaesumece mee psy ea Se ie rp ate et aca SS eenenie eens a Translators’ Preface Kelsen published this short reatise in 1934, when the neo Kantian influence on his work was at is zenith. An eatin, ‘consteuctivis’ phase, evident ia his Habiltationschrft of 19112 had been displaced over the couse of the fllowing decade by bis effort, albeit in fis and. starts, t0 provide Something approximating a neo-Kantan foundation for his theory. After 1934, Kelien began to introduce concepts fom he empiricist’ repertoire, taking over in some of his waings Hiume's analysis of causality, fr example, and arguing that an 4 prior catgory of causation would be step in she Wrong Airetion, away from Hume. Finally, after 1960, Klsen threw ‘over much ofthe Pure Theory of Law as we know i from his ‘second and third phases, ineroducing element ofa veltonal or “wll eheory of lw to ake ts place. 1 Kelsen's second, neo-Kantan phase cepresents the Pare “Theory of Law in ie most character fom, then this reatise may well be ts cental text. And of Kelens many satements of ‘the Pare Theory, this one i surely the most accessible “Translations of che 1934 teste into Japanese, Bulgatan, Portuguese and Spanish appeared wih 2 few years of the conginal, German-language edition. In the fist decae afer the Second World War, twas also translated into Chinese, Koresn, Telian, and French A translation inca Azabic was published in ee ot, es eat Tetum fe Emeric ef he Creal Law fhe Pin of ima Pee he TF coca a a ha sere he te centers I Law and Nature $1. Posy? ‘The Pure Theory of Law isa theory of postive law, of positive low as such, and not of any special system of law it general legal theory, not an interpretation of particular national or Jterational legal norms. As theory, the Pare Theory of Law sins solely at cogition of i subjecemate, its object. 1 atempts to answer the eons of what the lw is and how the law is made not the qusstion of what the law ought tobe or how the law ought to be made, The Pure Theory of Lis egal cence," no legal policy characterizes itself a a “pure theory of law because isis 43 cognition focused onthe law slone, and because i ts liminace from this cognition everything not belonging the bite of cognition, precisely specifed as the law, That the are Theory aims to fee legal scence ofall foreign eemene, ‘This is its basic methodological principle. The pence sey appear obvious, but a glance a adiional legal cence wie ag developed in the ninetenth and twentieth ceainies shoes lett just how far the tradition irom mestng the reuters ‘of purity. In an witerly unceeal way, jurisprudence has beng 1 hel sa Cai), On te ion te orc tot Stein ee IIR. feta, Gate w ety py, "Tel ith, come ne ly, ney 7A el Sle ie ne ee ‘Senn Semen Nos nappa” o* MH AH 8 sg1e entangled in psychology and biology, in ethics and cheology, “Today the legal scholar regards almost no specialized feld of ‘enguiry as beyond his purview. Indeed, he Believes that i is pretisely by Borrowing from other dlcplines that he can fahance his scholarly reputation, The teu of courses chat legal scene a such i oa. $2, Natural Matera Fact (Act and Meaning ‘The Pure Theory of Law ser 0 delimit clesely the abject fis cognition. The independence of this object threatened from two diecions by the prevaing methodological syncretism alluded to above, andthe Pure Theory takes both ino aes? Law is a socal phenomenon that, observable in society and society as am object of enquiry is completely diferent from nature, for it comprises a completely ifferet network of ‘ements I eal selene fot to merge nt the natural sciences, the In must be contested with natre a sharply a8 possible, And this is especially dificule to do since atleast part of the ‘sence ofthe la or what a fs blush it ural refezed to ae law) appears to occupy the realm of nature, o havea thoroughly natural existence. fe analyses a palmentary enactment, Say, or an administrative ac, a judical decision a provat law transection, a delce—all of which are refered tas (belonging 10 the) law—one ean distinguish two elements. There i an act pereeptible co the senses taking place in time and space, an ‘xteal event, usally an instance of human behavior. And thereis a specic meaning sense tha is, 500 speak manent ior atached tothe acto event People semble in» hall they five speeches, some rise, others remain seated—shis is the external events meaning that astute is enacted. Or, a man ‘ese in robes says certain words from a pleform,addeesing Someone standing before him. This external event has is ‘meaning judicial decison. A merchant writes a cera eter 9 nother merchant, who writes back in reply. This means they fave entered into a contract An individual somehow Sete © 4 Se for Kee alin tne pclae a ly ‘Seapine nd logy noha meade ye, Sein tbat frlnroecton Sor S52-3 9 bring about the death of another, and tht means, legally speaking, murder. $3: Satamepeton Soci Data Suen and bene sang Ths ‘nena not eng on can et hn ct te cata bated tee spr rane eee ere at ae igi Botta nl ccna ca es oe er epee ae) ee caesar adie at ae penis eleena tae eee ee sorrel ek Seen ely win pl wpe e acta Tine de ab aed hich ee r Te shh ney rte a can ieee yas rece Rope some prea ae apa Set ‘elton mest antag tr tee a ee ee epee oie eee or inte iw way dese niece eta ee ret or ney rene itt rmery Seco deca baa she bebe meagan Tene sea Feperpehoen fe pen etme cord arin eoencfalegnece wena «ct of the famous Captain from Kopenick? was to have been— 0 ae lane ra es a ore rere eeees Sanborn Wands codes Soar ge ea tl hy tab ose es eae Elie canmatentire cecum eee SIL Racine ee ba me 10 oe Pronouncement of the death pensty. They eal it thas, and ‘nstuct thet agent to kill te condermed party. Objecinly—ia the system of objective law—the king is murder by sree tribunal, and nor the creyng-ou ofa death penalty, Ard this So even though the exteraal circumstance of the at cannot be icnguished from thse of eareyingoute death penalty, 54. The Norm as Scheme of Interpretation ‘Those external circumstances ae always a pat of nature, for they are evens percepcbl othe sess, taking place in ne ad Space; and, a a part of nacute, they are governed by causal laws As elements of the sytem of nature thes events as such ate Mot objets of specifically legal cognition, and thus ae aot legal sharater at all. What makes such an event lepl (ora legal) acts not its fatcty, nots being natal, that is governed by ‘ausal laws and incied inthe system of nature, Rather, what ‘makes such an event a legal acts in meaning, the objective see ‘thatattaches to he ae. The specifically legal ens of the event ‘weston, i own peuliary legal meaning, comes by way of norm. whose content refers to the event and confers legal ‘meaning on the act ean be interred then, according co this norm. The nosm functions as a scene of interpretation, The oto is tel reated by way of a leal act whose own meaning somes in eum, from another oem. That 4 material faci hos ‘murder but the atrying-out of u death penalty i # quay, lnpercepible to the senses, chat St emerges byway ofan act of ‘tall, namely, conieonttion withthe criminal eode an with sximinal procedure. The aforementioned exchange of leters™ ieaas that a contract has been conclided, amie has this ‘meaning solely because these eeeumstances fill under eertain Provisions of the evil code, That an anembly of people is a Paviament, and that the result of thee acti i a vatute fit ther word, thar these events have this meaning’), sys simply ‘that the muteral facts as a whole correspond to. certain brovision ofthe constion. That, the content ofan actual vent corresponds tothe content ofa given norm, “Ses 00 SSE 55 n 55. The Norm as Actandas Meaning? {to these norms that legal cognition is direted—norms that absolutely all human beings; tha is, these norms have in prin an unlimited personal sphere of validity. And there are legal norms that impose obligations on, and. grant tight tO, cerein categories of human beings; that, these norms have only ited personal sphere of vali $57. Cognition of Legal Norms vs. Legal Sociology In chracersing he a ss and in esting gal cen {othe cognton of norms (sanction diferent om both making ‘tpn the ev ne eure haw fm aie, ot Separate lel scence a copie scene of norms fom a those engnive scene tha im to explain atl evn in terms of tual law. One even separate legal sclece fom pre science whose tasks oengure io the causes and flees of those natural evens ta, interpreted by ay of oa forms ace represented as legal act, Thre mo oben Gharicerng such research a scology—in parte ea ‘ocilogy.Anfor ts prospects and vat nohagfarthet nee be sid here Only sis might be poled out cognition in legal ‘ecology isnot concerned wil the legal norm ua specie Ieanings ther, es dete o certain evens Gs apa fom thew conection o norms that se recognize or Presappose “4 57 valid, Legal sociology does not relate the material facts in WabStn to ald norms nthe, celts these material fe to testo peril facts a cases and eft I ak sy what ‘las a legato eo deci on exactly these norms 2nd 9 ere othe and it asks wha effect bis equations have had He a how vligious imagination, say, ot economic date Fae ape ati ofthe cours, and what motivates people. aero fll eo behave in conformity with he legal syst eae ve int question in enguiies of this sort ony 3 & Te any date, aha fact in the consciousness of those buma® Talag eeing legal norms or complying wih and violating fect ofsuch cognition, den, snot actually the I tt Tac cea parallel phenomena io natre Sinialy with ‘el ilo he investigates the chemical or pyscal ae eat accompany extn fing or ive reo Proc under which these feelings occur, but be does not saat the decline themselves, whic as prybologa Spoemana, cannot be comprehended chemically or Pasilog Pama ure Theory of Lat s 4 speccaly legal scene, say attension no o [eal norms asthe dara of concious: dire aro the intending imaging of egal sors they Besar to legal norms qua (intended oF imagined) meen oa etergne Tcory encompasses material facts only where aan pcr are the content of legal norms that is are governed by Re Rotem Tne problem of the Pure Theory of Law isthe eeeide autonomy of realm of meanings 0 Law and Morality 58. Law and Justice In marking off the law ffom nature, the Pure Theory of Law secks the boundary between the natural and the idea Legal Seience belongs not co the natural sciences, but (© the human sciences.” One can argue over whether the apposition beoween the natural and the idea coincides withthe opposition becween ‘natural realty and value, berween "is and “ought, between ‘aul lw and norm, of wheter the realm ofthe ied i inded broader than the real of valu, of ‘ough’ of norm. One will ot be able to deny, however, thatthe law gua ot ea eal realy, nota natural realy. And with chat the as ie us as fone itnguisher the law from nature, t0.one by also. to distinguish the ideal phenomenon, lat, from other ideal Phenomena, especialy from norms of othe: type. Here, abore Al the task is to unfeter he law, eo break the connection chat = lays made between the lw and morality. What is rejected thereby is nt, of course, the dicate thatthe law ought to be ‘moral and goods that goes withou saying, chough what i really ‘esas is another question, Rather, what i rejected simply the ‘ew that dhe Lave 34 soch spar of morality, and that therfore tery law, a aw sin some sense and to some degree moral Depicting the law asa branch of morality may spy noun to the obviows dictate that the law ought to. be shaped. in accordance with moray, or it may mean that che law a a ptt ‘of morality actually has moral character. Either way, it an 2 et Cr es Kees and Wil, Wino’ ag, sponge el Se pr Se Sic So 'Fymin cs Geechee eon ove fl Eakendiacmadead cesses tock nope —————————— eee 16 58 attempt to confer upon the Law the absolute vale claimed by oral “The lw a moral category is tnamnount to jie, she expres wed fora socal odcing tat assay ih that {aly aceon oljecve by satping everyone, The longing fe ny omer pyslopeliy the cea loging of tra for keppinesy which he exnnor fad as an dvd nd ‘Before stain sey, Socal happiness calle ati. “Te ord sr be sue aso wed neal sean scr of canrmiy vo poste law-—in partial, contorty tte Thera gol nm api neces Siurly stot exe appeny theys"ujutand ie apes Wut gute apart fom any codrason ofthe vale of the een isl song oti ge jug something {Sten sinply vo cape th elie vino conform to Shormsatntin stove word for Te eral mening, however allen ro th legal ese ofthe wor sie stands for an aboot yale Is conent ‘nor be dermined bythe Pare Theory of Law or ine, Shed aby mop ratnal opaon sala the story of ian elec ender demonaratn wih is aire over {leno eset ths problem, Frits absolute valid, fe hich ms beagle ey ad han the ori la ies mach Beyond all expen Dee Mmon des es beyond narra rey, and the Sanscenden thingies beyond appearance, The dul {Get iew td frie asthe ee metapia character as ‘Rb ontologel dual Andy tke ontop daisy the sm oad ob ote pci ht ‘Sheree ot revolutions: on one enon ars vit csi neo eat bie Specnent wh te aol valey o@ another oxeason i EsNown wares wanding in conadcon tat lve Ai al, nr nd acon het of Sirti c ennas Ge whch case wth a fn los soa spn ond Seeman) 09 i Rota Cr Wer) some nlx ie i tr ss se ea 58 a ‘And jut a it i imposible, in keeping with the very presuppos tion, to ix the essence ofthe Platonic idea or ofthe thing iaviselé in tational cognition oriented to experience, «0 also itis ‘posible co anewer in that way the question of what justice i. ‘Until now, al atempss along these lines have led 0 completly ‘empty formulas, such a: “80 good and avoid evil, "0 each his ‘own’, ‘hold tothe golden mean’ and the like. Even the ‘categorical imperatives enely without conten. If one turns 10 ogative science for a determination of the absolute valve ignated by “ough? one lens only that yu ought co do what you ought do. Behind this tautology lurks the logs principle of ‘entry, ia muleaious forms and painstaking disguise, the insight that the good is good and not evi that thet jst and fotunsy and that A isthe sae at A ad not the same a nA ‘An absolute vale of wil and of ation, juice made into a8 objet of cognition must transform ite alfa sudden into the ‘des of wuth that is expressed (negatively ithe principle of ‘deny. Ths denaturing ofthe problem isthe inevitable result of forcing iat a logial scheme an object thats t bottom alien to lonie ‘Seen from the tandpoia of atonal cognition, there are any intecests and thus conflicts of interes, which are resolved by Way ofan ordering of ineress thar either sates the one atthe ‘expense ofthe other, or establishes « balance, a compromise beeween the opposing interests, That only one ordering of interests has absolute valve (which ell means, jst’ exit be accounted for by way of rational cognition. If these were justice inthe sete in which one usally appeal 0 it when one ‘wants to aset certain intrest over aber, then the positive aw would be completly supertiuos, its existence entiely incom Drehensible. Given an absolutely good social order emerging from nature, reason, or divine will the activi of the legilator would be 3 foolish as artical ilumination in the Brightest sunlight. The usual objection, however, is that lchoug there is indeed justice, we cannot define t,o, what amount othe sare thing, we canoe define it uneguivocaly. This objection it a contradiction in tems, masking in epi ideologel fashion the all oo painflerath justice qua absolute value sation. However indispensable ic may befor human will and action, iis not accesible to cognition. Oaly positive law is given 9 Cen Peer rere erect ECE EEE aE EEE EEE EEE EEE EERE 18 $58-9 cogsition, or, more accurately is given to cognition a a task* ‘The Tes one tives to separate clearly the posive law from jimice and the more indulgent one is toward the lawmakers forts to have the law aso accepted somehow as just, the more ‘ne lends support othe ideological bias that is characterise of asia, conservative tral law theory. What matters there i Tes the cognition of prevailing Lae than a jstication of ia tranafiguraton, achieved by showing that the positive law i ‘Simply the emanation of a nacural or divine order or ofa system ‘of raion —the emanation ofan absolutely ‘igh’ just order Revolutionary natural law theory, which has played a relatively tmodest role In the history of legal science, has the opposite Intention that of ealing into question the validity ofthe positive law by claiming tae the postive law contradicts some presup- proved absolute order So Kis that revolutionary natural law hcory sometimes repeesnts the seality of the Law in # more ‘unfavourable light than te rth warcats 9. Ant-tdeolopcal Stance ofthe Pure Theory of Law “These ideological biases, with obvious designs or fects in terms {Of power pols, still dominate legal scence, notwithstanding the apparent demise ofthe natral aw theory. The Pure Theory ‘Of Lave is dected agaist cher. The Pure Theory aims to depict the aw as iis without legitimizing its ust or disqualifying it Sr unjst the Pore Theory enquires ito actual and posible aw, forint ight aw. In this see ts 2 eadclly realist legal Theory. Ht sfser to evaluate the postive law. To grasp the posite law in it esence, and ro understand the postive aw by Thala is stractare-—thie alone is the atthe Pure Theory of par set for itself asa cognitive science In particular, the Pure “Theory reuse to serve political inert of ne vet or another by providing the heologcal means ether to legitimize or to ‘Slag the exiting soeal order. le thereby stands in shaspest ‘Spposton to traditional legal scence, whichis witingly oF wing logical i character, sometimes more 3, some- repent dn kere fe. 8 59 19 times les. Prec hough is anideologia tance the Pare $Thoey of Law prover cl 2 tre legal sce, whee inmaneat apron i the onvling of ie object of Sept: soy why yoni wh en ‘of conserving delending of enlogy ves reality by dior th te aim of aacking, destroying and ela th ‘orher reali. All iology hatte roots in wil notin cognitions ievlogy stems om certain itetety ox, more Sorry, fom ttre other than the inter in rth. {Nothing is being sid hereby, of course, about the value or vite ofthese other iret) Aguin and gain cognition reds the well tht the wil chrowgh ology, dea ove hing. The Stock who erates he law, sd thar seks to preserve may ask mother an ieolgially re cogalon of is prod i tee And een te fore thats to dentoy te exiting Syne and replace with another, deemed to Be eter, ma Dt now what to make of legal copii thats ee of teoogy. Neverteey, x cogtv sence of the lw cannot concen il ‘wth ee the ator who would preserve the stm othe {ores that would etoy ts And neopets what he ate Theory of Lae sims to be sig The Concept of Law and the Doctrine of the Reconstructed Legal Norm $10. Natural Law Theory and Lega Positivim, ‘The ideological character of waditional legs theory the theory assailed bythe Pure Theory of Law, is apparent in the familiar definition of the concept of ae. Traditional theory even today i under the influence of conservative natural aw theory, with as ‘mentioned above, its transcendent concept of lw. This ‘onceps coresponds completly tothe metaphysical character of philosophy during the period in which natural law theory prevailed a petod coinciding poiclly withthe emergence of fhe police state of the absolute monarchy. The vicory of the liberal bourgeoisie in the nineteenth century was the begining ofan outspoken reaction aginst metaphysice and natural aw theory. Hand in hand with progress im the empirical natural sciences and with the breakdown of religious ideology, bout roi legal science shied from natural law eo legal positivism, Sil, however ada his she may have Ben, never amounted ‘to an about-face. To be sur, the law ino longer presippored a fn eternal and absolute category; its content i recognized a subject historical change, ad the lw tell, as posi law i recognized as a phenomenon conditioned by temporal ahd spatial factors. The notion ofan absolute legal value, however, ‘ot completely lost, living on in an idea cherished even in Positvs jurisprudence, namely, che eticl idea of justice. Even here the distinction beeween law and justice is emphatically Kah ls ee and son a amc conc Some i of ete ys we ct ans pms oar §§ be nono a 2 $§10-11(a) draw she two nevertheless remain bound together by more ot les wsibl sn order wo be Taw, theory hast, dhe positive ‘sat system mast have some concern for juice, beie a matter of assuring an ethical minimum,” be ita mater of attempting, however inadequately, to be ‘ight aw that is simply, 0 be jst. In order to be ‘law’, the postive law must correspond in Some measure, however modes, tothe dea of lw, to justice. Since the legal character of the prevailing state system is presupposed as selevident, 0 mores equied tegen dhe fystem than this legal theory of the moral minimum, simpy 3 ‘anual law theory weit stall. And this minimal guarantee sufices in those comparatively quiet times when a consolidated bourgeoisie isin power, as wel asin periods of relative balance ‘of power among the’ various socal factions. The ulimate ‘conclusions of the offically recognized positivist principle are ot drawn, then, and legal cence is no completly postivisic inovientation. e's, however, preponderatly positivist. $1. Ough’ as Designating a Category ofthe Law (0) Ough’as Designating a Transcendent Idea Th even of pal ass dtd hoe i erened cla inthe concept bromine postive law, the concep form of ought While the nor seni of legal and oral orms is steed spun and again in urspeadence an abrolte oral ale noc eld int question, say ply be that an {volute moral value goes unchallenged v0 thatthe merely Fea value ofthe lw mig standout all he more cealy Spins tie background. Neverthe the mere fact that Intapradence dos nor deny the exience of an abolte vale, Aber or cose af competent o paso the Questions 2 facchar mum have rperimons fore concept of aw. Inded, "Th hm lin tin dhe iy oting e trae le ‘ile 1 pe Hoi: Cao lg 96 lines eee, "Shel! Rect The to i le ie ema eae Iie el fac nl te pac pre Fee {dtirandeorrene Spent Note oat S119) Pn i the law i viewed 8 norm jas a8 moraliy i and ifthe !neaing ofthe egal noe expres in a ‘ugh at anh ‘ofthe moral norm then someting ofthe able ache Shara of moray doe aac othe concep of tie por do the lp The aden tha somctg aly regulated, that some [norm ont oblgnony ot sete lieve ene feo te main that or fn oe {gon cpt an ar And ins some he concep

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