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Questions and Answers
What fundamental concept does Kelson's theory of pure science of law primarily rely on?
What fundamental concept does Kelson's theory of pure science of law primarily rely on?
- The historical evolution of legal systems
- The relationship between law and social ethics
- The psychological effects of legal commands
- The pyramidical structure of the hierarchy of norms (correct)
Which term does Kelson use to describe law in relation to its essence and commands?
Which term does Kelson use to describe law in relation to its essence and commands?
- Moral command
- Natural law
- Depsycholised command (correct)
- Causal command
What is the primary characteristic that separates normative science from natural sciences, according to Kelson?
What is the primary characteristic that separates normative science from natural sciences, according to Kelson?
- Normative science deals only with actual law
- Normative science defines what law ought to be (correct)
- Normative science is based on empirical data
- Normative science is purely theoretical without practical application
What does Kelson's Grundnorm provide to other norms in his legal theory?
What does Kelson's Grundnorm provide to other norms in his legal theory?
In what way did Kelson view other branches of knowledge such as ethics and politics in relation to law?
In what way did Kelson view other branches of knowledge such as ethics and politics in relation to law?
What distinguishes Hans Kelson's Pure Theory of Law from John Austin's analytical jurisprudence?
What distinguishes Hans Kelson's Pure Theory of Law from John Austin's analytical jurisprudence?
Which of the following best describes Kelson's stance on the relationship between law and other disciplines?
Which of the following best describes Kelson's stance on the relationship between law and other disciplines?
According to Kelson, what is the significance of the 'grundnorm' in his theory?
According to Kelson, what is the significance of the 'grundnorm' in his theory?
What did Kelson aim to eliminate from the study of law based on his Pure Theory of Law?
What did Kelson aim to eliminate from the study of law based on his Pure Theory of Law?
Which aspect of law did Kelson reject from his theory that is often emphasized in other schools of thought?
Which aspect of law did Kelson reject from his theory that is often emphasized in other schools of thought?
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Study Notes
Analytical School of Jurisprudence
- Morality is integral to law but cannot be wholly detached; it is essential for maintaining societal order.
- R.W.M. Dias emphasized that while positivists focus on "law as it is," they acknowledge the relevance of moral considerations, advocating a distinction between the two.
- Positivism emerged during stable social conditions in Britain, reflecting a reaction against naturalism and the necessity for law to uphold order.
Hans Kelsen (1881-1973)
- Revived analytical thought in the 20th century with the ‘Pure Theory of Law.’
- Born in Prague, Austria, Kelsen was a law professor and Supreme Constitutional Court judge in Austria from 1920-1930.
- Worked in the US as a law professor and published extensively, contributing significantly to legal theory.
- Advocated for a strict separation of law from politics, sociology, and other non-legal disciplines, aiming to enhance clarity in jurisprudence.
- Kelsen’s work is viewed as a revival of John Austin's 19th-century analytical jurisprudence, eliminating moral and ethical considerations from legal theory.
Theory of Pure Science of Law
- Kelsen's Pure Theory aimed to combat ideologies corrupting legal theory in totalitarian regimes.
- Defines law as a "Pure Science" because it conceptualizes the legal object and establishes its reality, devoid of ethical or political influence.
- Applicable universally, Kelsen stressed that law must be distinct from ethics, history, and sociology while acknowledging their value.
Law as Normative Science
- Kelsen characterized law as a "depsycholised command," distinguishing it as a normative science rather than a natural science.
- Natural sciences describe phenomena based on cause and effect, while law addresses what ought to be, providing a normative character.
- Law embodies primary norms that impose sanctions, representing positive law focused on the actual rather than ideal aspects.
The Grundnorm
- Kelsen's theory relies on a hierarchical structure of norms, originating from a fundamental norm called the 'Grundnorm.'
- The Grundnorm defines the validity of subsequent norms within the legal structure; however, Kelsen did not address its own validity, considering it a meta-legal inquiry.
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