Abstract
This work explores the relationship between law and politics as considered and interpreted by certain of the major contemporary schools of legal theory. Based on the methodology as described in Chapter One, this next part investigates and classifies the contemporary legal movements according to three ideal-typical models with respect to the relationship of law and politics. The focus in this chapter is on the first of these models, namely the autonomous one, while Chapters Three and Four explore the embedded and intersecting models, respectively. The placement of contemporary legal theories under one or another model is based on their positions as to the following issues: How the law interacts to politics (the static aspect), how law-making relates to the political order (the dynamic aspect) and finally, the position of the law as a branch of study, an academic discipline towards the political material (the epistemological aspect).
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References
See, e.g., Kelsen, General Theory of Law and State 438 (1949); or Raz, On the Autonomy of Legal Reasoning, in Raz, Ethics in the Public Domain, supra at 314–315.
See, e.g., Habermas, Between Facts and Norms, supra at 202. But see Bix, Jurisprudence: Theory and Context 34 (3rd ed., 2003).
See Waluchow, Inclusive Legal Positivism, supra at 103–140; and Leiter, Positivism, Formalism, Realism: Legal Positivism in American Jurisprudence. By Anthony Sebok, 99 Colum. L. Rev. 1141–1144 (1999). See also the general outline of the different positions in the legal positivism(s) of past decades in Matthew Kramer, How Moral Principles Can Enter Into The Law, 6(1) Legal Theory 83–92 (2000).
See, e.g., Kramer, Where Law and Morality Meet 223–244 (2004). See also Michael D. A. Freeman, Lloyd’s Introduction to Jurisprudence 332–333 (7th ed., 2001); and, reaching more or less the same conclusion though following a different path, Danny Priel, Farewell to the Exclusive-Inclusive Debate, 25 Oxford J. Legal Stud. 681–686 (2005).
Waluchow, Authority and the Practical Difference Thesis, supra at 80–81. But see Waluchow, Inclusive Legal Positivism, supra at 82.
Stating the necessity for every legal positivistic approach to separate the legal phenomenon from the values it carries, see Raz, Authority, Law, and Morality, in Raz, Ethics in the Public Domain, supra at 210–219. Compare the defense of the specific features of inclusive legal positivism against Raz’ criticisms in Waluchow, Authority and the Practical Difference Thesis, supra at 47–52.
See, e.g., Luhmann, Law as a Social System, supra at 366. Although both Luhmann and Teubner start from a sociological point of departure, they soon enter into a typical normative discussion as to the features characterizing the law from politics, the distinction between jurisprudence as concerning norms and sociology facts being outdated. See Luhmann, Law as Social System, 83 NW. U. L. R. 136 (1989); and Teubner, Introduction to Autopoietic Law, in Autopoietic Law, supra at 1–2. See also Cotterrell, Law’s Community, supra at 105–108.
Habermas, Between Facts and Norms, supra at 202. See also Torben Spaak, Legal Positivism, Law’s Normativity, and the Normative Force of Legal Justification, 16 Ratio Juris 471–476 (2003).
See, e.g., MacCormick, Legal Reasoning and Legal Theory 236–238 (1997).
Concerning the connection between the rise of legal positivism and the nation state, see, e.g., Friedmann, Legal Theory 256 (5th ed., 1967). For the idea of legal positivism as the legal thinking most suitable to the needs of stabilization and predictability of a modern state and its political powers, see also Weber, Economy and Society, supra at 874–875. Cf. Csaba Varga, Kelsen’s Pure Theory of Law: Yesterday, Today and Tomorrow, in Varga, Law and Philosophy: Selected Papers in Legal Theory 290–291 (1994).
See, e.g., Hart, The Concept of Law, supra at 86–88, 181–182; and Kelsen, Introduction to the Problems of Legal Theory 15–16 (Clarendon Press 1996) [reprint 1934]. See also Cotterrell, Law and Community: A New Relationship? 51 Current Legal Probs. 372 (1998).
See Kelsen, The Communist Theory of Law 193 (1955). For the narrow and purely preliminary role attributed by Kelsen to sociological studies in normative investigations, See, e.g., MacCormick & Weinberger, Introduction, in Maccormick & Weinberger, an Institutional Theory of Law, supra at 2. Similarly, see also Hart, Analytical Jurisprudence in Mid-Twentieth Century: A Reply to Professor Bodenheimer, 105 U. Pa. L. Rev. 974 (1957).
Raz, The Concept of a Legal System: an Introduction to the Theory of Legal System 113 (2nd ed., 1980).
Kelsen, Law, State, and Justice in the Pure Theory of Law, in Kelsen, What is Justice? Justice, Law and Politics in the Mirror of Science 289 (1957). As to a very similar correspondence between the task of legal professions and politicians, see also Weber, From Max Weber: Essays in Sociology 94–95 (H. H. Gerth & C. Wright Mills eds., 1946).
See Kelsen, The Pure Theory of Law, supra at 89–91.
Stanley L. Paulson, Hans Kelsen’s Earliest Legal Theory: Critical Constructivism, 59 Mod. L. Rev. 803 (1996). As to the persistent problems raised by this differentiation for Kelsen’s epistemology, and in particular by the possibility of identifying “legislator’s intention” with some sort of psychological phenomenon, see id. at 807–810.
See MacCormick, Legal Obligation and the Imperative Fallacy, in Oxford Essays in Jurisprudence 104, 111 (A.W.B. Simpson ed., 1973). More specifically, for Kelsen there are two meanings of politik. The first concerns “politik” as connected to the ethical sphere; the second refers directly to law as a specific social technique. Concerning the significance of “politics-as-ethics,” this concerns the fundamental question of which type of content is to be given to a certain system, i.e. the choice of ultimate goals to which this system should strive. “Politics-as-technique” concerns the realization of already established goals (objektiven Ziele) with the use of appropriate means. That which distinguishes this second meaning from the ethical dimension of politics is the fact that it begins to operate only after politics-as-ethics has established the goals of the social (and legal) order. See Kelsen, Allgemeine Staatslehre, supra at 28.
Kelsen, What is Justice? in Kelsen, What is Justice? supra at 7.
See Kelsen, The Pure Theory of Law, supra at 2–3.
See id. at 3–5, 193. See also Kelsen, Introduction to the Problems of Legal Theory, supra at 11: “To comprehend something legally can only be to comprehend it as law.” But see Alida Wilson, The Imperative Fallacy in Kelsen’s Theory, 44 Mod. L. Rev. 276 (1981), as to the lack of “objectivity” in the legal meanings attributed to the norms merely by their belonging to a hierarchical system.
See Kelsen, The Pure Theory of Law and Analytical Jurisprudence, 55 Harv. L. Rev. 45–48 (1941). Although beginning with different patterns, Jeremy Waldron more or less arrives at the same conclusion. See Waldron, Law and Disagreement 144 (1999).
See Kelsen, The Pure Theory of Law, supra at 352.
Kelsen, On The Pure Theory Of Law, 1(1) Israel L. Rev. 5 (1966).
Tony Honoré, The Basic Norm of a Society, in Normativity and Norms, supra at 94. See also Fuller, the Morality of Law: Revised Edition 110, 119 (1969); and Freeman, Lloyd’s Introduction to Jurisprudence, supra at 274.
Raz, The Problem about the Nature of Law, in Raz, Ethics in the Public Domain, supra at 192 [italics added].
As to the law’s capacity for self-building its own constitutive elements (in primis its “authority”), see Raz, Authority, Law, and Morality, supra at 201.
MacCormick, The Concept of Law and ‘The Concept of Law’, 14 Oxford J. Legal Stud. 1 (1994). “Autonomy” as used by MacCormick differs from the meaning adopted in this work. For MacCormick, “autonomy” refers to the self-justifying character of morals, while the law needs to be based on (although not rooted upon) a foundation external to itself. Id. at 4.
MacCormick, Institutional Normative Order, supra at 1062.
See Hart, The Concept of Law, supra at 16–17. See also Hart, Analytical Jurisprudence in Mid-Twentieth Century, supra at 959, where he criticizes the reductionist attitude of Kelsen, “reductionist” in the sense that Kelsen, in trying to find the basic elements of the law, tends to reduce it to a (relatively) simple phenomenon.
Hart, The Concept of Law, supra at 208. See also id. at 92–95; and Dworkin, Law’s Empire, supra at 33–35. In this context, the debate concerning Hart’s reference, on one hand, of primary and secondary rules and, on the other hand, of primary and secondary norms, is not taken up here. See, e.g., Notes, The Distinction between the Normative and Formal Functions of Law in H.L.A. Hart’s ‘The Concept of Law’, 65 Va. L. Rev. 1359–1361 (1979).
Hart begins his investigation with the “widespread common knowledge of a modern municipal system... I attribute to any educated man,” i.e. from the law as phenomenon of social culture. Hart, Postscript, in The Concept of Law 240 (2nd ed., 1994). See also Hart, The Concept of Law, supra at 80; and Sylvie Delacroix, Hart’s and Kelsen’s Concepts of Normativity Contrasted, 4 Ratio Juris 504–510 (2004).
Hart, The Concept of Law, supra at 55. See also Hart, Postscript, supra at 255.
See Hart, The Concept of Law, supra at 189–195. See also Hart, Problems of the Philosophy of Law, in Hart, Essays in Jurisprudence and Philosophy 112 (1983).
Hart, Comment, in Issues in Contemporary Legal Philosophy 36 (R. Gavinson ed., 1987) [italics added].
See Cotterrell, The Politics of Jurisprudence, supra at 81–83 as to the distinction in legal theory between “empiricist” and “conceptualist” approaches. Although not speaking expressly of an “empirical approach,” MacCormick also points out this basic difference between Kelsen and Hart in approaching legal issues: “[I]n this respect Hart is Humean where Kelsen is a Kantian.” Maccormick, H.L.A. Hart, supra at 26.
See Hart, Problems of the Philosophy of Law, supra at 90. He also speaks of “special characteristics of concepts in the use of rules.” Hart, Analytical Jurisprudence in Mid-Twentieth Century, supra at 958. See also Coleman, Second Thoughts and Other First Impressions, in Analyzing Law: New Essays in Legal Theory 258 (B. Bix ed., 1998).
Maccormick, H.L.A. Hart, supra at 3–4. This very “English feature” of Hart’s perspective is one of the features that lead some critics to doubt the truly general character of his legal theory. See Perry, Hart’s Methodological Positivism, supra at 316–319.
“On both theoretical and moral grounds Hart opts for the thesis that moral value ought not to be treated as a necessary condition of legal validity.” MacCormick, H.L.A. Hart, supra at 159. However, as admitted by Hart himself, this choice of considering the value-aspect as neither constitutive nor essential to the idea of law, is per se a valuechoice. See Hart, The Concept of Law, supra at 206–207. See also MacCormick, A Moralistic Case for A-moralistic Law? 20 Val. U. L. Rev. 37–40 (1985).
Moreover, legal concepts have as characteristic features the fact that they are ascriptive (i.e., in particular in judicial statements, they attribute a right or responsibility) and defeasible (i.e. one can contest such attribution). See Hart, The Concept of Law, supra at 21–23, 56.
See id. at 49–40; and Hart, Positivism and the Separation of Law and Morals, supra at 626–627.
See id. at 607–608.
In replying to David Lyons’ criticism of Hart’s idea as to the open-texture of language, Bix also stresses Hart’s idea of a legal domain on the penumbrial area. The penumbrial area is constituted by legal language (although uncertain) and only elements with the same ontology are allowed to enter and affect it. See Bix, Law, Language, and Legal Determinacy 35 (1993).
See Hart, Positivism and the Separation of Law and Morals, supra at 614–615; and Hart, Analytical Jurisprudence in Mid-Twentieth Century, supra at 956, 963 n.20 and 968.
Maccormick, H.L.A. Hart, supra at 126 [italics added]. Hart’s defense against various critics as developed by Bix, Law, Language, and Legal Determinacy, supra at 28–35 is also in the same direction.
See Hart, Definition and Theory in Jurisprudence, in Hart, Essays in Jurisprudence and Philosophy, supra at 28.
See Hart, Analytical Jurisprudence in Mid-Twentieth Century, supra at 970. Compare Coleman, The Practice of Principle: in Defence of a Pragmatist Approach to Legal Theory 81–83 (2003).
See, e.g., Hart, Commands and Authoritative Legal Reasons, in Hart, Essays on Bentham: Jurisprudence and Political Theory 254–255 (1982). Hart actually speaks of the “stability” of legal concepts. See Hart, Analytical Jurisprudence in Mid-Twentieth Century, supra at 957.
Hart, Postscript, supra at 240. See also Hart, The Concept of Law, supra at 73, where Hart stresses the decisive role played by the legal rules and the habit of obedience.
See Hart, Analytical Jurisprudence in Mid-Twentieth Century, supra at 957.
For this specific character, a “necessity of a new sensitivity to logical and linguistic distinction” and of a new specific tool, namely analytical jurisprudence, therefore arose. Id. at 974. Compare Hart, Postscript, supra at 268, where he speaks of conceptual autonomy “between the content of law and morality” [italics added]. In this passage, that which Hart is actually referring to however is the diversity in the ontology (in terms of forms and structure) of the legal and moral phenomena as a medium, not in the messages law and moral (in terms of what behaviors are accepted or not) carry to the community of addressees. See, e.g., Hart, Positivism and the Separation of Law and Morals, supra at 598–599.
See Kelsen, Science and Politics, in Kelsen, What is Justice?, supra at 372. See also Raz, The Identity of Legal Systems, 59 Cal. L. Rev. 814–815 (1971).
See, e.g., Kelsen, The Pure Theory of Law, supra at 63. See also Cotterrell, The Politics of Jurisprudence, supra at 104: “Like Hart’s concept of law in terms of primary and secondary rules, Kelsen’s view of a structure of norms authorizing their own creation, modification and destruction provides a picture of law from which human beings have almost disappeared.”
See Waldron, Legislation, Authority, and Voting, 84 Geo. L. J. 2189 (1996).
See generally Raz, Legal Positivism and the Sources of Law, in Raz, The Authority of Law: Essays on Law and Morality (1979). As pointed out by Fuller, this implies that it often is the very ideas about the law-making processes that characterize the embracers of legal positivism or analytical jurisprudence. See Fuller, The Morality of Law, supra at 192–193. See also Dworkin, Taking Rights Seriously 40–41 (1997) and his idea of “Pedigree Thesis” as one of the features characterizing legal positivism.
See Kelsen, General Theory of Law and State, supra at 134–135. See also Kelsen, The Pure Theory of Law, supra at 233–236.
See Kelsen, General Theory of Law and State, supra at 128–130. See also Norberto Bobbio, Kelsen and Legal Power, in Normativity and Norms, supra at 445.
Raz, Kelsen’s Theory of the Basic Norm, 19 Am. J. Juris. 96 (1974). See also id. at 98–99, 105–107; and Kelsen, The Pure Theory of Law, supra at 6, 8–10. But see Carlos Santiago Nino, Some Confusions surrounding Kelsen’s Concept of Validity, in Normativity and Norms, supra at 256–258. According to Nino, Kelsen’s validity is not a feature of a legal system or of a particular norm, but a descriptive quality attached to such system or norm by the judgments formulated by jurists. Validity is then transferred from the ontological dimension of the legal system to the scientific work of legal scientists. If one accepts Nino’s interpretation, validity should then instead have been dealt within the next section (The Ideal of a “Pure” Legal Discipline).
See Kelsen, The Pure Theory of Law, supra at 193–195, 201; and Kelsen, General Theory of Law and State, supra at 116–117. See also Raz, Kelsen’s Theory of the Basic Norm, supra at 110–111; and Paulson, Kelsen’s Legal Theory: the Final Round, 12 Oxford J. Legal Stud. 268–270 (1992) as to the fictitious character of the Basic Norm.
See Kelsen, On The Pure Theory Of Law, supra at 6. See also Delacroix, Hart’s and Kelsen’s Concepts of Normativity Contrasted, supra at 513–514.
The “first constitution” is the constitution according to whose procedure the current constitution has been formed and enacted. See Kelsen, The Pure Theory of Law, supra at 201–205.
See Kelsen, The Function of a Constitution, in Essays on Kelsen 112–115 (R. Tur & W. Twining eds., 1986).
See Kelsen, The Pure Theory of Law, supra at 238–240, 242–245; and Kelsen, General Theory of Law and State, supra at 135. See also Kelsen, Reine Rechtslehre: Einleitung in Die Rechtswissenschaftliche Problematik 97 (1934).
See Delacroix, Hart’s and Kelsen’s Concepts of Normativity Contrasted, supra at 509. As stated by Bobbio, the Basic Norm plays the role of “transforming power into law.” Bobbio, Kelsen and Legal Power, supra at 438. See also Jes Bjarup, Kelsen’s Theory of Law and Philosophy of Justice, in Essays on Kelsen, supra at 281; and Agostino Carrino, Reflections on Legal Science, Law, and Power, in Normativity and Norms, supra at 517.
See Kelsen, General Theory of Law and State, supra at 120, where the author points out how the content of the Basic Norm is a matter of contingency, i.e. it “is determined by the facts through which an order is created and applied.” See, e.g., Kelsen, Professor Stone and The Pure Theory of Law, 17 Stan. L. Rev. 1144 (1965).
Raz, The Concept of a Legal System, supra at 100 [italics added].
See Kelsen, The Pure Theory of Law, supra at 217–218. See also Kelsen, General Theory of Law and State, supra at 316; and Delacroix, Hart’s and Kelsen’s Concepts of Normativity Contrasted, supra at 511.
See, e.g., Kelsen, General Theory of Law And State, supra at 114, 132–133. See also Raz, Kelsen’s Theory of the Basic Norm, supra at 105–106.
Ross, On Law and Justice, supra at 69. See also Julius Stone, Legal System and Lawyers’ Reasoning 124–125 (1964). But see Kelsen’s replay in Professor Stone and the Pure Theory of Law, supra at 1140–1151.
See Ross, On Law and Justice, supra at 70. Raz has responded to such criticism by asserting a possibility for laws that indirectly authorize their own creation within Kelsen’s theory. Therefore, Raz continues, every legal system in the end does not require a basis on “a non-positive” (i.e. politically and not legally justified) Basic Norm. See Raz, The Concept of a Legal System, supra at 138–140.
Although some differences exist, the analysis here of Hart’s idea of law-making and legal discipline is also essentially valid for the position of inclusive legal positivism on these issues. See, e.g., Hart, Postscript, supra at 250–254.
In many cases, the Rule of Recognition can be identified with that widely known as a “living constitution.” See Hart, The Concept of Law, supra at 103.
Hart, Positivism and the Separation of Law and Morals, supra at 612. Raz states that Hart has to be counted among those expressing the “incorporation thesis,” i.e. the idea that “all law is either source-based or entailed by source based law.” Raz, Authority, Law, and Morality, supra at 194–195.
Hart, The Concept of Law, supra at 92.
See Raz, The Concept of A Legal System, supra at 199–200. See also Coleman, Rules and Social Facts, 14 Harv. J. L. & Pub. Pol’y 707 (1991).
For Hart, the Rule of Recognition “is a rule of the group to be supported by the social pressure it exerts.” Hart, The Concept of Law, supra at 92.
Hart, Analytical Jurisprudence in Mid-Twentieth Century, supra at 955.
Murphy, The Political Question of the Concept of Law, supra at 385. See also Waluchow, The Weak Social Thesis, 9 Oxford J. Legal Stud. 26–27 (1989); and Raz, Legal Positivism and the Sources of Law, supra at 37: The social thesis is “that what is law and what is not is a matter of social fact.”
See Hart, Postscript, supra at 255–256. For an exhaustive analysis on Hart’s internal perspective of the legal phenomenon, see Maccormick, Legal Reasoning and Legal Theory, supra at 275–292; generally Scott J. Shapiro, What Is The Internal Point of View?, 75 Fordham L. Rev. 1157–1170 (2006); and, for the internal perspective’s following refinements (e.g. by Raz and Finnis), see Bix, H. L. A. Hart And The Hermeneutic Turn In Legal Theory, 52 SMU. L. Rev. 183–186 (1999). See also the similar division drawn by Arnold W. Thurman, Institute Priests and Yale Observers-A Reply to Dean Goodrich, 84 U. Pa. L. Rev. 813 (1936), between a science of law (“the one for ceremonial use inside the institution”) and a science about law (“for observation from above”).
MacCormick, H.L.A. Hart, supra at 109. See also Hart, Postscript, supra at 256–257.
The prevalence of the normative dimension of the Rule of Recognition as to its being originated into the social reality has led Coleman to state: “[T]he claim that the rule of recognition is a social rule recognizes that the rule itself may not be constituted by convergent social practices. Instead, its authority as a rule of recognition [i.e. its raison d’être] depends on there being a social practice of accepting it as authoritative... [such rule] can be specified independently of the existence of a social practice.” Coleman, Rules and Social Facts, supra at 708 n.9 [italics added]. See also id. at 721.
Murphy, The Political Question of the Concept of Law, supra at 372.
Id. [italics added]. Also stressing Hart’s Rule of Recognition as a rule of positive law, see Rolf Sartorius, Hart’s Concept of Law, in More Essays in Legal Philosophy 157 (R. Summers ed., 1971).
Hart, The Concept of Law, supra at 53.
See id. at 50. Hart stresses in particular that this cannot be the case in modern democracies where “the composition of a legislature... [is characterized by] a frequently changing membership.” Id. at 53.
Even in the most absolute monarchies, these rules have to exist as they identify that which is “the rule of succession” in the role of the lawgiver entitled to the title of Rex II, the right to succeed and the right to make law. See id. at 52–53.
See id. at 58, 60. Through a slightly different pattern, inclusive legal positivism reaches the same conclusion as Hart does. See, e.g., Waluchow, Inclusive Legal Positivism, supra at 39.
Id. at 92 [italics in the original].
For example, José Juan Moreso and Pablo E. Navarro argue that the Hartian and Kelsenian ideas of the “reception of norms” (i.e. the idea that despite any revolution, it is still possible to find structural relations between the earlier norms and the new system) are a sign of a propensity to perceive law-making as closed in relations to political turmoil. See Moreso & Navarro, The Reception of Norms, and Open Legal Systems, in Norma-Tivity and norms, supra at 273–275.
See Kelsen, Science and Politics, supra at 365. See also Raz, Hart on Moral Rights and Legal Duties, 4 Oxford J. Legal Stud. 131 (1984); and Maccormick, Legal Reasoning and Legal Theory, supra at 139–140, as to the socio-political underpinning of Hart’s Rule of Recognition.
See, e.g., Raz, The Problem about the Nature of Law, supra at 191. But see MacCormick, H.L.A. Hart, supra at 159.
See Ross, On Law and Justice, supra at 66–67.
See Cotterrell, The Politics of Jurisprudence, supra at 100–101.
In the first edition of the Reine Rechtslehre, Kelsen dedicated one section to underscoring the “anti-ideological” character of the Pure Theory of Law, i.e. its being totally emptied of any political discourse or usage. See Kelsen, Introduction to the Problems of Legal Theory, supra at 18–19.
See Cotterrell, The Politics of Jurisprudence, supra at 96, 102–103. See also Delacroix, Hart’s and Kelsen’s Concepts of Normativity Contrasted, supra at 512; and Bobbio, The Promotion of Action in the Modern State, in Law, Reason, and Justice. Essays in Legal Philosophy 194 (G. Hughes ed., 1969).
See, e.g., Coleman, The Practice of Principle, supra at 4–5 n. 4.
See H.L.A. Hart, supra at 160. See, e.g., Kelsen, Vom Wesen und Wert der Demokratie 98–103 (2nd ed., 1929). In contrast with natural law scholars, however, most of the twentieth century legal positivists claimed (at least until the end of World War Two) a neutrality (i.e. not laden by any political values or meanings) for their methodology and results. See, e.g., Kelsen, Allgemeine Staatslehre, supra at 44–46. See also Waluchow, Inclusive Legal Positivism, supra at 80–81, depicting the traditional idea of legal positivists as denying “anything but contingent connections between law and morality.”
See, e.g., Hart, Definition and Theory in Jurisprudence, supra at 47; and Kelsen, The Pure Theory of Law, supra at 70.
See, e.g., Waluchow, Inclusive Legal Positivism, supra at 15–30. In this long excursus, Waluchow promotes the possibility of a descriptive-explanatory approach to the legal phenomenon and rejects Dworkin’s claim that each description of the law is actually an interpretation, implying necessarily a “taking of a moral stand” by the observer. For a similar argument, see also Gerald Postema, The Normativity of Law, in Issues in Contemporary Legal Philosophy: The Influence of H. L. A. Hart 85 (R. Gavinson ed., 1987).
Kelsen, The Pure Theory of Law, supra at 1. See also Raz, On the Functions of Law, supra at 287–288. As to the ambiguity of the term “legal science” in the Kelsenian writings, see Paulson, Appendix I: Supplementary Notes, in Kelsen, Introduction to the Problems of Legal Theory, supra at 127–129.
See Kelsen, Über Grenzen Zwischen Juristischer und Soziologischer Methode 52–55 (1970).
See Kelsen, The Pure Theory of Law, supra at 1. See also Bjarup, Kelsen’s Theory of Law and Philosophy of Justice, supra at 301.
See Kelsen, On The Pure Theory Of Law, supra at 4, separating the philosophy of law (“speculation about justice”) from the science of law (“as a science of positive law”).
Kelsen, The Pure Theory of Law and Analytical Jurisprudence, supra at 49.
Kelsen, The Pure Theory of Law, supra at 10.
See Kelsen, General Theory of Law and State, supra at 437–439. The structural rigidity of the Kelsenian law towards the outside world leads Raz to state that Kelsen implicitly takes the lawyer’s perspective. See Raz, The Problem about the Nature of Law, supra at 185.
Friedmann, Legal Theory, supra at 277.
See Kelsen, The Pure Theory of Law, supra at 210. See also Kelsen, General Theory of Law and State, supra at 437. However, as pointed out by Friedmann, “[h]ow this minimum of effectiveness is to be measured Kelsen does not say, nor could he do so without going deep into questions of political and sociological reality.” Friedmann, Legal Theory, supra at 278. Raz, although coming from another point of observation, reaches more or less the same critical results as Friedmann does. See Raz, The Purity of the Pure Theory, in Essays on Kelsen, supra at 82. But see James W. Harris, When and why does the Grundnorm change? 29(1) Cambridge L. J. 116–117 (1971) (against the identification of the Basic Norm with a social or political phenomenon).
See Kelsen, The Pure Theory of Law, supra at 197. According to Kelsen, it is important to note that it is possible to distinguish between a positive constitution and the Basic Norm as a constitution of the legal system, the latter being posited above the first. See id. 198–199. As to the relation in Kelsen’s works between the Basic Norm and the constitution, see, e.g., Uta U. Bindreiter, Why Grundnorm? A Treatise on the Implications of Kelsen’s Doctrine 62–65, 80–85 (2000).
See, e.g., Kelsen, Allgemeine Staatslehre, supra at 321.
Kelsen, The Pure Theory of Law and Analytical Jurisprudence, supra at 51. See also Kelsen, the Pure Theory of Law, supra at 73–75; and Paulson, Appendix I: Supplementary Notes, supra at 130–131. As to the problem raised by Kelsen’s terminology (in particular the descriptive use of Ought-statements), see Bindreiter, Why Grundnorm?, supra at 131–143
Kelsen, General Theory of Law and State, supra at 163. Much criticism has been directed at Kelsen’s idea of the legal discipline as a mere descriptive enterprise of Ought-statements, in particular as depicted in the General Theory of Law and State. See particularly Hart, Kelsen Visited, in Normativity and Norms, supra at 70–76. Carrino points out that Kelsen’s attempt to specify a sharp distinction between the object (the law-Ought) and the method of approach (descriptive statements of the Ought-statements) finds its roots in the neo-Kantian critical idealism of the nineteenth century. See Carrino, Reflections on Legal Science, Law and Power, supra 519–520.
As pointed out by many of Hart’s commentators, this purity in the approach to the legal phenomenon of course does not exclude that the Hartian analytical methodology, in its turn, has a hidden external political task. See, e.g., Murphy, The Political Question of the Concept of Law, supra at 380. See also Perry, Hart’s Methodological Positivism, supra at 342–347.
See Hart, Analytical Jurisprudence in Mid-Twentieth Century, supra at 972.
See id. at 961. See also Hart, The Concept of Law, supra at Chapter II, Chapter IV; and Hart, Definition and Theory in Jurisprudence, supra at 28. MacCormick labels Hart’s methodology as “hermeneutic,” since it seeks to explain a phenomenon (the law) through an interpretation of the meaning attached to it by the actors participating to the phenomenon itself (the legal actors). See Maccormick, H.L.A. Hart, supra at 29. But see Shapiro, What Is The Internal Point of View?, supra at 1158–1161.
Hart, Analytical Jurisprudence in Mid-Twentieth Century, supra at 961–962.
Id. at 974–975.
See, e.g., Hart, Abortion Law Reform: The English Experience, 8 Melb. U. L. Rev. 391–392, 394–397, 400–408 (1972), where the author brings into play sociological and political data while investigating the English legislation relating to abortion.
Hart, The Concept of Law, supra at vii.
Coleman, Rules and Social Facts, supra at 717–718. See also Coleman, The Practice of Principle, supra at 199–201; and Summers, On Identifying And Reconstructing A General Legal Theory, supra at 1034–1035. But see Maccormick, H.L.A. Hart, supra at 166 n. 34 (pointing out the similarities between Hart and Kelsen’s idea of the legal discipline).
Hart, Definition and Theory in Jurisprudence, supra at 21 [italics added]. See also Hart, Analytical Jurisprudence in Mid-Twentieth Century, supra at 973–974.
Raz, The Purity of the Pure Theory, supra at 96–97 [italics added].
Spaak, Legal Positivism, Law’s Normativity, and the Normative Force of Legal Justification, supra at 473 [italics in the original]. See also Coleman, Rules and Social Facts, supra at 715–717. Compare Frederick Schauer, Constitutional Positivism, 25 Conn. L. Rev. 800–801 (1993). It is worth stating again that the definition of politics adopted in this work includes not only the stricto sensu political values, but also those of the economic, cultural or moral nature.
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(2008). The Autonomous Model. In: Law and Politics. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-73926-5_3
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