kelsen
an antimony in kelsen’s ptl
Some important ideas in K’s PTL can be traced back to Kantian trad
K draws distinction btn 2 radically dif worlds: world of facts & world of norms. The normativity of legal science and idea of validity as a binding force, based on doctrine of the BN
These tenets & use of a normative concept of validity prove to be incompatible w/ K’s positivistic programme of a value-free legal science. Science of law CANNOT state that legal norms are obligatory or binding w/o overstepping the limits of K’s ideal of a legal science. If K is to be re. as a positivist, the Kantian traces of his theory must be rejected & the descriptive concept of validity as membership must be substituted for the normative notion of validity as a binding force.
The Kantian and the Positivistic ingredients in the PTL
A prominent difficulty preventing us from drawing a coherent picture of K’s PTL is the presence of 2 groups of ideas that stem from quite dif philo- trad and are not only difficult to reconcile but some argue are radically incompatible.
Kelsen re. himself & his theory to fall under the positive camp.
4 main ideas of his theory:-
The characterisation of legal norms as ideal entities belonging to ‘ought’ – distinct from the world of natural reality = ‘is’
Conception of validity as a binding force = normative concept of validity
Normativity of legal science
Doctrine of BN as a transcendental category
These are all closely connected. It is b/c norms are ideal entities = dif to the real world their existence is not a fact; norms prescribe their validity, understood as a binding force. Legal science is not normative in the sense that it is concerned w/ norms. The idea of validity as a binding force is based on the BN, whose main role is to make the idea of validity compatible w/ K’s positivistic ideal of a non-evaluative legal science
Description v prescription; cognition v evaluation; science v politics – can all be re. as the core of the
Some important ideas in K’s PTL can be traced back to Kantian trad
K draws distinction btn 2 radically dif worlds: world of facts & world of norms. The normativity of legal science and idea of validity as a binding force, based on doctrine of the BN
These tenets & use of a normative concept of validity prove to be incompatible w/ K’s positivistic programme of a value-free legal science. Science of law CANNOT state that legal norms are obligatory or binding w/o overstepping the limits of K’s ideal of a legal science. If K is to be re. as a positivist, the Kantian traces of his theory must be rejected & the descriptive concept of validity as membership must be substituted for the normative notion of validity as a binding force.
The Kantian and the Positivistic ingredients in the PTL
A prominent difficulty preventing us from drawing a coherent picture of K’s PTL is the presence of 2 groups of ideas that stem from quite dif philo- trad and are not only difficult to reconcile but some argue are radically incompatible.
Kelsen re. himself & his theory to fall under the positive camp.
4 main ideas of his theory:-
The characterisation of legal norms as ideal entities belonging to ‘ought’ – distinct from the world of natural reality = ‘is’
Conception of validity as a binding force = normative concept of validity
Normativity of legal science
Doctrine of BN as a transcendental category
These are all closely connected. It is b/c norms are ideal entities = dif to the real world their existence is not a fact; norms prescribe their validity, understood as a binding force. Legal science is not normative in the sense that it is concerned w/ norms. The idea of validity as a binding force is based on the BN, whose main role is to make the idea of validity compatible w/ K’s positivistic ideal of a non-evaluative legal science
Description v prescription; cognition v evaluation; science v politics – can all be re. as the core of the