Kelsen's Juridical Positivism Theory

Study Notes

Kelsen's Theory of Law: Juridical Positivism

Key Concepts:

Juridical positivism is a central aspect of Hans Kelsen's theory of law.
It emphasizes the importance of understanding law as a system of norms, separate from morality and sociology.

Core Principles:

Separation of Law and Morality: Kelsen argues that law and morality are distinct entities, and that law should not be based on moral judgments.
Normativity: Law is a system of norms, which are understood as prescriptions, prohibitions, or permissions.
Positivism: Law is seen as a human construct, created through positive acts of legislation, rather than derived from natural law or moral principles.

Implications:

Legal Validity: A norm is legally valid if it is created in accordance with the higher norms of the legal system.
Hierarchy of Norms: Kelsen's theory posits a hierarchical structure of norms, with a basic norm (Grundnorm) at the top, from which all other norms derive their validity.
Purity of Method: Kelsen advocates for a "pure" approach to legal science, focusing on the study of positive law, untainted by moral or sociological considerations.

Critiques and Controversies:

Too Narrow a Focus: Critics argue that Kelsen's theory neglects the social and moral context in which law operates.
Overemphasis on Formalism: The focus on the formal structure of law may lead to an underestimation of the role of moral and political values in shaping legal norms.

Description

Explore the core principles and implications of Hans Kelsen's juridical positivism theory, including the separation of law and morality, normativity, and positivism. Understand the hierarchy of norms and the purity of method approach in legal science.