Stanley L. Paulson

Introduction to the problems of legal theory : a translation of the first edition of the Reine Rechtslehre or Pure theory of law

Purity law and morality the concept of law and the doctrine of the reconstructed legal norm overcoming the dualism of legal theory the legal system and its hierarchical structure interpretation the methods of creating law law and state the state and international law.

Material and Formal Authorisation in Kelsen's Pure Theory

W hat sort of relation, according to the Pure Theory of Law, does a higher-order norm bear to a lower-order norm? Does the higher-order norm in effect subsume the lower-order norm? And if so, is subsumption sufficient for authorisation, such that subsumption of a norm under an appropriate higher-order norm authorises, say, a legal officials “choice” of that norm? This interpretation of authorisation in the Pure Theory of Law, fine as far as it goes, would be misleading if offered as a full statement. For Hans Kelsen in fact works with two types of authorisation, what I term material authorisation , wherein authorisation of a lower-order norm stems from the applicable higher-order norm, and formal authorisation , wherein authorisation of a lower-order norm flows from the power of the legal organ that creates, applies, or validates that norm.

Hans Kelsen's Doctrine of Imputation

First, the author examines the traditional doctrine of imputation. A look at the traditional doctrine is useful for establishing a point of departure in comparing Kelsens doctrines of central and peripheral imputation. Second, the author turns to central imputation. Here Kelsens doctrine follows the traditional doctrine in attributing liability or responsibility to the subject. Kelsens legal subject, however, has been depersonalized and thus requires radical qualification. Third, the author takes up peripheral imputation, which is the main focus of the paper. It is argued that with respect to the basic form of the law, exhibited by the linking of legal condition with legal consequence, peripheral imputation counts as an austere doctrine, shorn as it is of all references to legal personality or the legal subject. If Kelsens reconstructed legal norms are empowerments, then the austere doctrine of peripheral imputation captures the rudiments of their form, exactly what would be expected if peripheral imputation does indeed serve as the category of legal cognition. Finally, the author develops the puzzle surrounding the legal “ought” in this context. Although Kelsen talks at one point as though the legal “ought” were the peculiarly legal category, the author submits that this is not the best reading of Kelsens texts.

Demystifying Reinach’s Legal Theory

Adolf Reinach has not fared well at the hands of writers and commentators in jurisprudence and legal theory,1 critics whose mystification of Reinach’s view often has been disguised in claims to the effect that Reinach is the one doing the mystifying. One major writer sees a connection between Reinach’s theory and nineteenth-century Begriffsjurisprudenz or legal conceptualism.2 Another writer, a legal philosopher, points to Reinach as offering a theory ofthe Natur der Sache, from which, as it happened, other developed a species of natural law theory.3 A leading historian of legal theory, drawing on Reinach’s talk of “a priori essences”, relegates him to a never-never land: Having thus established to their own satisfaction that it is a vain delusion to look for a purely empirical solution of the problem of the nature of law, the metaphysicians begin the search for some a priori concept existing independently of all possible experience . . . Perhaps no one has cut himself off from the facts of experience so sharply as Reinach, for whom the foundations of positive law belong to a realm which is not only distinct from the world of Nature but also independent of human understanding, of human organizations, and of all the actual course of human or material occurrences.4

Metamorphosis in Hans Kelsen's Legal Philosophy

Two major questions stem from the fundamental shift in Hans Kelsens legal philosophy that takes place in 1960 and the years thereafter: first, the scope of the shift and, second, its explanation. On the first question, I argue that the shift is not limited to Kelsens rejection of the applicability of logic to legal norms. Rather, it reaches to his rejection of the entire Kantian edifice of his earlier work. On the second question, I argue that the explanation for the shift has a conceptual dimension as well as a historico-biographical dimension. That is, I argue that Kelsens rejection of the principle of non-contradiction vis-a-vis legal norms reaches to the Kantian edifice in that the principle was presupposed in Kelsens earlier work and appears, expressis verbis, in his ‘Kantian filter’. And I argue that certain historico-biographical data are germane, including, quite possibly, the earlier revolution in Kelsens thought, that of 1939–40.

Constitutional Review in the United States and Austria: Notes on the Beginnings

Abstract Despite far-reaching historical and political differences, and despite legal systems that reflect altogether different traditions, the United States and Austria manifest striking similarities where some aspects of their respective development of constitutional review are concerned. For example, on the constitutional review of federalist issues (competing claims of federal and state law), the review power was there from the beginning in both countries. And both countries developed a power of constitutional review reaching to the enactments of the federal legislature. In a brief sketch of aspects of the early development of constitutional review in both countries, the author looks, in particular, to the kinds of arguments made on behalf of constitutional review in the American and Austrian legal systems.

The very idea of legal positivism

Much in recent discussions on legal positivism suggests that the controversy surrounding the notion turns on the distinction between inclusive and exclusive legal positivism.1 As a point of departure in distinguishing them, the separation principle is helpful.2 At the most general level, the separation principle – as Kenneth Einar Himma neatly puts it – denies ‘that there is necessary overlap’ between the law and morality.3 The separation principle counts, then, as the contradictory of the morality principle, according to which there is ‘necessary overlap’ between the law and morality, however this might be explicated.4 What the legal positivist’s

Ein ewiger Mythos: Gustav Radbruch als Rechtspositivist - Teil

Oft heist es, Gustav Radbruch sei vor 1933 einer der fuhrenden Rechtspositivisten gewesen. Diese weit verbreitete Ansicht ist jedoch schon im Ansatz falsch. Radbruch ubte nicht nur bereits in seiner fruhen Periode eine grundliche und recht scharfe Kritik an den damals verfochtenen Varianten des Rechtspositivismus - was in diesem ersten Teil des Aufsatzes dargelegt werden soll. Auch vertrat Radbruch bereits seit 1924 einen nichtpositivistischen Neukantianismus - was der zweite Teil dieses Fortsetzungsaufsatzes deutlich machen wird. Der Rechtspositivismus Gustav Radbruchs ist ein Mythos, und der, wie Mythen ganz allgemein, will Ewigkeit.

Constraints on Legal Norms: Kelsen's View in the "Essays"

The last years of Hans Kelsens life, between the publication in 1967 of an English translation of his great and difficult work, the Pure Theory of Law,I and his death in 1973,2 were marked by a flurry of Kelsenite scholarship.3 For Anglo-American readers, the most important new development was the publication in December of 1973 of a major collection of translations of Kelsens papers, the Hans Kelsen: Essays in Legal and Moral Philosophy. 4 This volume contains the first English translations of a number of Kelsens noteworthy papers on the natural law theory and all of his papers on the logic of legal norms. 5