FACTA UNIVERSITATIS Series: Law and Politics Vol. 1, N o 5, 2001, pp AN OBSERVATION ON THE THEORY OF LAW OF HANS KELSEN UDC Zoran Jelić Federal Government of Yugoslavia Abstract. The author

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FACTA UNIVERSITATIS Series: Law and Politics Vol. 1, N o 5, 2001, pp AN OBSERVATION ON THE THEORY OF LAW OF HANS KELSEN UDC Zoran Jelić Federal Government of Yugoslavia Abstract. The author of this paper deals with the basic causes of numerous often extremely negatively intoned critical estimations said on the account of Kelson's pure theory of law and exposes essential propreties of certain phases of its development; point to the contribution of Merkl and Verdross to the making of pure theory of law and to the main determinants of Kelsen's attempts to formalize jurisprudence (the science of law) for the purpose of creating conditions for exact and objective study of positive law; analyzes the meaning and scope of Kelsen's normativisms and provides his views of further making of the pure theory of law. Key words: pure theory of law, positive law, theory of degrees, classical pure theory of law, new pure theory of law, structural (immanent) approach to law, Kelsen's normativisms, logics of norms, further making of the pure theory of law. 1. INTRODUCTORY CONSIDERATIONS From its origin in 1911 to date, the pure theory of law of Hans Kelsen ( ), doubtlessly a leading law scientist of the 20 th1 century, is almost a lasting challenge to the renowned workers in the domain of jurisprudence (the science of law), but also the subject of ongoing critical settling of accounts and heated disputes. In the greatest number of cases, however, numerous critical objections said on the account of Kelsen's views could be, in keeping with a suitable remark of Alfred Verdross 2, qualified as misunderstandings and, accordingly, in our opinion, doubtlessly rejected. Received, February 26, Cf. Rudolf A. Metall: Hans Kelsen, Leben und Werk, Verlag F. Deuticke, Wien In the introductory note of his book Metall states that Kelsen is the writer of the 20 th century . Similar estimation is provided by Rosco Pound, who at one time emphasized that Kelsen is probably the greatest living worldwide law scientist and one from the distinguished circle of classical authors of the law science (see Здравко Гребо: Маркс и Келсен , Свјетлост , Сарајево, 1979, р. 6). 2 Cf. Robert Walter: Kelsens Lehre im Spiegel reshtsphilosophischer Diskussion in Österreich ( Österreichische 552 Z. JELIĆ Kelsen's troubles with the law scientists, according to the claim of Radomir D. Lukić, comes from the fact that he was a philosopher-law scientist, but they were only law scientists. He wanted to rise them to the level of philosophy, but they were not able for that. In the same context, Lukić also remarks that, in fact, it seems that nobody (including himself while he was young) understood Kelsen enough, did not dive to the debth of his thought to be able to successfully and groundedly criticize him. 3 No matter how much, basically correct and in addition witty, the quoted explanation provided by Lukić certainly demands some supplements and explanations, that is, appropriate preciseness. Namely, Lukić does not provide an answer to the question what the greatness and significance of Kelsen's work consists of and how it is possible that it is that much denied, very often from quite different, mutually opposing points of view, and that his author is at the same time considered the greatest law theoretician of recent times. 4 In that sense, its seems that, first of all, it should be stressed that Kelsen's teaching is of primarily methodological character and that it makes a set of programming starting points established even in his first systematic work published in 1911 under the title Hauptprobleme der Staatsrechtslehre , Tübingen, Verlag von J.C.B. Mohr 1911, based upon which essential determinations of this law doctrine were then continuously worked out, shaped and modified over several decades. 5 The aforementioned circumstance unambiguously points to the conclusion that Kelsen's theory of law is not any completed and rounded off teaching, but as Robert Walter, present head of the Institute Has Kelsen in Vienna, correctly ascertains a doctrine permanently under development, open to the ongoing add-on invited to participate in which are all persons interested in. 6 When one approaches consideration and estimation of Kelsen's scientific creative work, it is necessary, first of all, general methodological attitudes to be precisely identified and separated from the material statements; the difference between them, as it is usually said, is often very slippery 7 what mainly is not taken care of enough, so that the programming determinations are identified with the completed results and thus mixed that what is instructive with that final and vice versa, as well as that which represents its subject, that is, with the positive law. On the other hand, Kelsen's scientific activities span a period of more than 60 years, so that it is quite natural that between the initial and final formulations of his key views there are sometimes significant, even essentual differences that reasonably give a pretext for two mutually opposing concepts clasical and a new pure theory of law to be spoken Zeitschrift für öffentliches Recht Band XVII, Heft 2-3, Springer-Verlag, Wien-New York, 1968, p. 351). 3 Cf.др Радомир Лукић: Келзенов нормативизам , Анали Правног факултета у Београду, Nо. 1-4/1983, p Cf. др Снежана Савић: Појам права као нормативног поретка , Бањалука, Универзитет у Бањалуци - Правни факултет 1995, p. 87. She justifiably propounds a questions why the critics of Kelsen's teaching always start from certain shortcomings instead of good sides which would, doubtlessly, be more adequate if Kelsen is spoken of as the greatest law scientist of the 20 th century. 5 Cf. Hauptprobleme , Vorrede III (1911) where Kelsen explicitely underlines that his work is primarily of methodological character. 6 Cf. Роберт Вагнер: Теорија права Ханса Келзена , Досије, Београд, 1999, p Cf. др Мирослав Печујлић: Методологија друштвених наука , друго, измењено и допуњено издање, p. 139, Савремена администрација , Београд, 1982. An Observation on the Theory of Law of Hans Kelsen 553 about. According to Vladimir Kubeš 8, scientific activities of H. Kelsen have passed a development way of several decades which include four distinctly marked stages (phases), the characteristics of which will only be outlined here. Phase One is related to the apperance of the already mentioned Kelsen's first systematic work Principal Problems of the Theory of State Law which served as a basis for the making of the normativistic doctrine of the Vienna law school, that is, encouraged gathering of a circle of principled like-minded persons, out of which, otherwise, each separately tried to learn from the other, not giving up the idea of following his own way. 9 The main characterispuc of this stage, particularly at its beginnings, is a fight against the traditional trends of the theory of law, that is, against its non-critical syncretism of methods, for the purpose of enabling distinct and precise defining the structural or immanent approach to the positive law in the law phenomenon in general. Phase Two begins with the second edition of the book Principal Problems of the Theory of State Law which was published in V. Kubeš allows that this phase began probably a couple of years earlier when the original, exclusively static teaching, primarily under the direct influence of Merkl, transformed into the dynamic legal understanding. This stage sees relativization of former absolute opposites between the world of reality or being (Sein) and the world of what ought to be (Sollen). Development Phase Three usually is asrcibed to the necessity of adjusting the pure theory of law to the American circumstances, on which Kelsen provides closer explanation in the introduction to his work General Theory of Law and State , in which he anew formulated thoughts and ideas reported in earlier works published in German and French. 10 Certain articles from this period, and particularly the aforementioned work, which was for the first time published in 1945, can only with some hesitation be classified in the pure theory of law, understood in its clasical or authentic form. Phase Four and the last one in the devlopment of Kelsen's doctrine, begins, according to V. Kubeš, around 1963, to be singled out in this period should be two exceptionally significant works such as Zum Begriff der Norm and Recht und Logik which, according to Verdross, prove not only the flexibility of Kelsen's spirit ( Elastizität seines Geistes ), but also his courage to subject his earlier attitudes to self-criticism. Unfortunately, as Kubeš claims, Kelsen comes in this phase, under the influence of Walter Dubislaw, to a tragic conclusion ( zu dem tragischen Schluss ) that the norm prefers emperor , that is, that there is no imperative without the emperor ( kein Imperativ ohne Imperator ), so that A. Verdross is right claiming that Kelsen has thus come back to the 8 Cf. V. Kubeš: Das neueste Werk Hans Kelsen über die allgemeine Theorie der Normen und die Zukunft der Reinen Reshslehre (Österreichische Zeitshrift für öffentliches Recht und Völkerrecht, Vol. 31, No. 3-4, 1980, Springer-Verlag Wien-New York, pp Cf. Ханс Келзен: Чиста теорија права , Правни факултет у Београду - Центар за публикације, Београд,1998, p. 7. Belonging to the mentioned circle, headed by Kelsen, in addition to others were Adolf Merkl, Alfred Verdross, František Weyr, Jozef Kunz, Leonidas Pitamic as well as Fritz Sander who, however, became later one of Kelsen's embittered opponet. 10 The book General Theory of Law and State , Harvard University Press 1945) is, in fact, a compilation from three Kelsen's works, such as: General Theory of Law and State ( Allgemeine Staatslehre , 1925) Théorie générale du droit international public , 1928 and Reine Rechtlehre , 1934 554 Z. JELIĆ nominalistic grounds of law of William of Occam ( ). 11 However, Allgemeine Theorie der Normen , the last work of Kelsen, goes on V. Kubeš, is, in fact, only the highest point ( Gipfelpunkt ) and a summary of this tragical development which brings him quite to the School of Uppsala of A. Hägerström, Lundstedt, Olivecrona and Alf Ross ! 12 Ota Weinberger, the author of the well-known law logic Rechtlogik (Springer- Verlag, Wien-New York, 1970), who notes that the basic theses contained in Allgemeine Theorie der Normen are an expression of a new concept that in essential features differs from earlier Kelsen's views, agrees in principle with the exposed view of Kubeš, so that today classical and new pure theory of law ( klassische und neue Reine Rechtslehre ) can be talked about. In the new pure theory of law, validity of the norm is much more closely linked with real facts than it was the case in the classical form of this theory, in two directions: 1) the existence of the norm is linked with the being of the act of will the sense of which is the norm; a single norm cannot in a logic way be directly derived from the appropriate general norm without previously making the corresponding single act; 2) the norm is valid only when it is effective. Namely, in the new concept of the pure theory of law, not only that the validity of the legal order (legal system) is linked with the certain degree of efficacy, but the validity of the single norm is dependent on the corresponding efficacy as well, that is, efficiency of the single norm is a condition of its validity, which, according to Weinberger, is the attitude opposing the normativistic way of viewing CONTRIBUTIONS OF MERKL AND VERDROSS TO THE MAKING OF THE PURE THEORY OF LAW Among the main representatives of the Vienna School of Law, as a name for a group of famous law theoreticians whose spiritual centre was the capital of Austria over the period shortly before the World War I and around ten years after its completion, in the narrow and proper sense of the word, in addition to Kelsen, Adolf Julius Merkl ( ) and Alfred Verdross-Drossberg ( ) 14 should, first of all, be included. To 11 In the history of philosiphy William of Occam is considered to be among the representatives of nominalism (lat. nomen = name) who pointed out that a notion is nothing else but a common name for single things. Universalies, according to them, cannot be recognized to objectively exist, since single things exist in reality. Universalies for Occam, in fact, represent that what is similar in single things. 12 Closer data and information on the Uppsala School (in Serbian) can be found in the book of др Стеван Врачар, Структуралност филозофије права , Издавачка књижарница Зорана Cтојановића, Сремски Карловци Нови Сад, 1995, pp Cf. Ota Weinberger: Normentheorie als Grundlage der Jurisprudenz und Ethnik, Duncker und Humblot, Berlin, 1981, pp In honour of Kelsen, Merkl and Verdross, as the leading representatives, that is classial authors, of the Vienna School of Law, Hans Klecatzky, René Marcic and Herbert Schambeck prepared a proceedings of papers under the title Die Wiener Rechtstheoretische Schule in 1968, containing selected papers of the above three classical authors, in two books, published by Europa Verlag , Wien-Frankfurt-Zürich und Univerzitätsverlag Anton Pustet , Salzburg-München. An Observation on the Theory of Law of Hans Kelsen 555 the two pupils of his, Hans Kelsen has, in recognition of their contribution to the making of the pure theory of law, devoted the second edition of his work Principal Problems of the Theory of State Law (1923), stating in the introduction to that edition that to Merkl belongs the merit of formulating the theory of degrees ((Stufentheorie), and to Verdross of essentially developing the teaching on the basic norm as the constitution in law and logical sense and laying down the problem of relations of state and international law. 15 According to Kelsen, Merkl has already in his first works on law and theory studies, prior to his thirties, introduced himself as a real genius of law science thinking ( als ein warhres Genie rechtswissenschaftlichen Denkens ). In connection with this, Kelsen remarks that Merkl's theory of degrees is one of the most important contribution to the exact knowledge and objective description of positive law and that it is only with it that an insight into the internal structure of the legal order has been obtained. As I have already emphasized in the introduction to the second edition of my book Principal Problems of the Theory of State Law (1923) writes Kelsen, Merkl's theory of degree has become an essential integral part of the pure theory of law which I advocate: thus, Merkl must be considered one of its cofounders. 16 Robert Walter, Merkl's pupil, points to the fact that the theory of degrees is often simplified in applicaton, although an exceptionally complex teaching is in question. Here, it goes without saying, we can neither venture analyzing it or discussing the consequences arising from it, 17 but, anyway, it seems that one should point out that this theory unambiguously suggests the necessity of expanding the subject of the law science to studying single norms, that is, to investigating relevant judicial, administrative, business and other legal practices, as forms of concretizations of statutes and substatutes regulations. Reducing the subject of continental jurisprudence primarily and predominantly, and very often and exclusively to working out legal material provided in the form of general legal rules, in the long run, means dealing with normative semifinished products. In that sense, Kelsen justifiably remarks that it is a mistake to think that making of the law completes with the legislature or that, moreover, it is contained only in it. 18 The general law norm as an abstract and impersonal command obliges everybody and practically referes to no one. 19 That is why the law science would have to come to the general rules, like in the Anglo-Saxon system, by the generalization of single typical cases as well, since no legal term, that is, notion has fully safe meaning, while it and its 15 Cf. Hauptprobleme (1923), Vorrede zur zweiten Auflage, pp. XV-XVI and XXII-XXIII. 16 Cf. Hans Kelsen: Adolf Merkl zu seinem siebzigsten Geburtstag amd 23. März 1960 . (Österreichische Zeitscrift für öffentliches Recht Band X Heft 3-4, Springer-Verlag, Wien, 1960, p 313). For closer information on the theory of degrees an excellent article by Roger Bonnard, published in Revue du droit public et de la science politique en France et à l'étranger , tome 45, Paris 1928 (pp ) under the title La théorie de la formation du droit par degrés dans l'oeuvre d' Adolf Merkl should be, first of all because of easy-going exposure, referred to. 17 Cf. A. Merkl: Prolegomena einer Theorie des rechtlichen Stufenbaues , Geselleschaft; Staat und Recht , Wien, Verlag fon Julius Springer, 1931, pp Cf. Ханс Келзен: О суштини и вредности демократије , Центар за унапређење правних студија, Београд, 1999, pp Cf. Проф. др Драган Милков: Управно право II , Универзитет у Новом Саду, Правни факултет, Центaр за издавачу делатност, Нови Сад, 1997, p. 26. 556 Z. JELIĆ limitations have been proved in practice, which is just a case of precedent. 20 Like an exceptionally loyal pupil and associate and consistent follower of Kelsen, Merkl has, under the influence of his teacher, in our opinon, done two very important investigations for the needs of making the pure theory of law. Thus, he had first approached the fundamental study of the problem of legal force for the purpose of overcoming casuistry, which to the moment had been dominating in the study of this law institute, and reported the results obtained in the corresponding monograph published in The actual purpose of this monograph, written upon Kelsen's incitentive 21, was to provide stabilization of the subject of jurisprudence, which was at one time proclaimed a worthless science by Kirchmann, a German law philosopher, explaining that three words corrected by the lawmaker are enough to make numerous libraries worthless. 22 Since pure theory of law, as correctly remarked by Bonnard 23, requests unchangeableness of the norm, consequently, steadiness of the subjects of its studies, Merkl has concentrated his research efforts to prove that legal force is a common feature of all legal acts, both judicial and legislative and administrative, where, in spite of ceratin digressions, he has doublessly made considerable success. Therefore, his investigations are also nowadays considered a great contribution to the law science in this domain 24, and a contribution of paramount importance for defining the concept of legal certainty, that is, legal security. Standardization of legal concepts has, however, been carried out by Merkl in the province of administrative law, thas is, in the most voluminous, most versatile and the most dynamic branch of the legal system or legal order, to put it more precisely, in the field that has always been considered as relatively free from law, moreover, not fettered by law and finally, subjected to the principle of opportunity, but not strict legality. In his work General Administrative Law (1927) Merkl has, in fact, in line wit
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