Hans Kelsen: Difference between revisions

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→‎The Pure Theory of Law: Use {{gloss}} to point out that *single quotes* are correct here, per MOS:SINGLE. Adding the German original term in parens (as already the case for Grundnorm) would probably be useful.
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Kelsen is considered one of the preeminent jurists of the 20th century and has been highly influential among scholars of [[jurisprudence]] and [[public law]], especially in Europe and Latin America although less so in [[Common law|common-law]] countries.
 
Kelsen's ''Pure Theory of Law'' aims to describe law as a hierarchy of binding norms, while refusing, itself, to evaluate those norms. That is, 'legal science' is to be separated from 'legal politics'. Central to the Pure Theory is the notion of a 'basic norm (''[[Grundnorm]]'')'{{mdash}}a hypothetical norm, presupposed by the theory, from which in a hierarchy of empowerments all 'lower' norms in a [[legal system]], from [[constitutional law]] downward, are understood to derive their validity, hence their authority or 'bindingness'. This is not logical validity (i.e. of deduction), but 'legal validity'; a norm is legally 'valid' if and only if the organ creating it has been so empowered by a higher norm. Public international law is understood as similarly hierarchical. In this way, Kelsen contends, the validity of legal norms (their specifically 'legal' character) can be understood without tracing it ultimately to some suprahuman source such as God, personified Nature or a personified State or Nation. The Pure Theory is intended as rigorous [[legal positivism]], excluding any idea of [[natural law]].
 
Kelsen's main statement of his theory, his book ''Reine Rechtslehre'', was published in two editions, far apart: in 1934, while he was in exile in Geneva, and a second, much expanded edition after he had formally retired from the [[University of California, Berkeley]]. The second edition appeared in English translation in 1967, as ''Pure Theory of Law'';<ref>The title page gives the title correctly as ''Pure Theory of Law'', but the original paperback cover had ''The<!--[sic]--> Pure Theory of Law''.</ref> the first edition appeared in English translation in 1992, as ''Introduction to the Problems of Legal Theory''. The current translation of the second edition, in omitting many footnotes, obscures the extent to which the Pure Theory is both philosophically grounded and responsive to earlier theories of law; a new translation is in preparation.