An Examination of Hans Kelsen Philosophy of Law

ABSTRACT

 

One reason for the current revival
of interest in Kelsen is the desire for an alternative to the empiricist and
natural law approaches that have been the main competitors in English-language
philosophy of law. Unlike empiricists, for whom the law is reducible to social
facts, Kelsen argues that legal interpretation concerns non-empirical norms. These norms have a necessary
structure that restricts legal interpretation. In examining the Hans Kelsen
philosophy of law, the study adapts the historical research method and
deductive reason of analysis. On the other hand, unlike natural law theorists,
Kelsen argues that the law is not restricted by moral considerations. Any act, no matter how morally
repugnant, can be legally required. Kelsen's restrictions on legal
interpretation are formal, not material.
Despite the increased interest in Kelsen's work, there remains a good deal of
controversy not only concerning whether his "third way" between empiricism
and natural law is successful, but also concerning just what his "third
way" amounts to. Appreciation of Kelsen's work has been further hampered
by his notoriously obscure Kantian methodology. The study therefore offers a
detailed interpretation of Kelsen's formalist legal theory and a sympathetic account
of his Kantianism by drawing analogies, which Kelsen himself recognized,
between his legal theory and something more familiar- the logical analysis of
language.

 

 

CHAPTER
ONE| INTRODUCTION

1.1 BACKGROUND TO THE STUDY

1.2 STATEMENT OF THE PROBLEM

1.3 SIGNIFICANCE OF THE STUDY

1.4 SCOPE AND DELIMITATION OF THE SUDY

CHAPTER TWO: LITERATURE
REVIEW

 

2.1
INTRODUCTION

mso-bidi-font-weight:bold">2.2 The Concept of law

mso-bidi-font-weight:bold">2.3 The Concept of legal norm

mso-bidi-font-weight:bold">            2.3.1
Imputation

mso-bidi-font-weight:bold">            2.3.2
Validity

mso-bidi-font-weight:bold">            2.3.3
The basic norm

2.4
KELSEN’S PURE THEORY

            2.4.1 KELSEN’S HIERARCHY OF LEGAL
NORMS

Meaning
of Normative Statement for Kelsen

Moral
Relativity

CHAPTER
THREE: CRITICAL ANALYSIS OF HIS “GROUND
NORM AND HIERARCHY OF NORMS” WITH REFERENCE TO HIS PURE THEORY OF LAW AND IT’S
CONTRIBUTION TO THE ANALYTICAL POSITIVISM

 

3.1 INTRODUCTION

3.2 Hierarchy of
normative relation

3.3 Effectiveness
and Validity

3.4 International
law and Kelsen theory

3.5 APPLICATION OF KELSEN THEORY IN THE
INDIAN AND NIGERIA SCENARIO

            3.5.1 INDIAN CASE ANALYSIS ON
KELSONIAN CONCEPT OF LAW

3.6 CRITICAL
EVALUATION OF THE OBSERVATION NOTED ABOVE

 

EN" lang="EN">CHAPTER FOUR: MORAL PRINCIPLES AND THE BOUNDARIES OF LAW

4. 1 Law and
Its Merits

            4.1.1 The Fallibility Thesis

            4.2.2 The Separability Thesis

4.3 The
Neutrality Thesis

CHAPTER FIVE: SUMMARY AND CONCLUSION

Bibliography