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Kelsen between formalism and realism

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  1. 1

    Semiotics and Legal Theory, London, Routledge and Kegan Paul, 1985, ch.10. My work has been greatly enriched by Paulson's interest, contributions and friendship.

  2. 2

    Lurking beneath the surface of these issues is the question of the precise definition and role of Kelsen's “norm”, on which I express my views far more fully inSemiotics, supra note 1 at section 10.1.

  3. 3

    SeeThe Pure Theory of Law, trld. Max Knight, Berkeley & Los Angeles, University of California Press, 1967 (hereafter PT), 267–76 (normative alternatives) and 350–55 (the frame of interpretation).

  4. 4

    The judicial decision might be thought to be covered bylex posterior, but the general norm would at the same time be privileged in terms of thelex superior. On the development of Kelsen's thought regarding thelex posterior, see S.L. Paulson, “On the Status of theLex Posterior Derogating Rule”, V(1)Liverpool Law Review (1983), 5–18.

  5. 5

    Paulson has observed that this is the dominant doctrine in American Constitutional Law. See his “Material and Formal Authorisation in Kelsen's Pure Theory”, 39/1Cambridge Law Journal (1980), 172–193.

  6. 6

    Supra note 5 at 192.

  7. 7

    Theft Act 1968, ss.1–7, which would be regarded by Kelsen either as a single norm or as one primary plus several dependent norms.

  8. 10

    The Concept of Law, Oxford, The Clarendon Press, 1961, 121–132; discussed further in mySemiotics, supra note 1 at sections 7.2–3.

  9. 11

    See the discussions in M. Losano,Forma e Realtà in Kelsen, Milan, Giuffre, 1981, 91–116, reprinted from 45Rivista internazionale di filosofia del diritto (1968), 524–45; M. Troper, “Kelsen, La Theorie de l'Interpretation et la structure de l'Ordre Juridique”, 35Revue internationale de philosophie (1981), 518–29.

  10. 12

    Essays in Legal and Moral Philosophy, ed. O. Weinberger, Dordrecht, D. Reidel, 1973, 243 (hereafterEssays).

  11. 13

    “Outline of a Logical Analysis of Law”, 11Philosophy of Science (1944), 142; see further mySemiotics, supra note 1 at section 10.5. The borrowing is not acknowledged by Kelsen, but it can hardly be accidental that Kelsen uses this particular example in arguing against Oppenheim's own claim, that “correctness” is a necessary part of “validity” even though one can conceive of “enforceable” but incorrect (and thereby invalid) legal norms.

  12. 14

    Cf. O. Weinberger, “Logic and the Pure Theory of Law”, in W.L. Twining and R.H.S. Tur, eds.,Essays on Kelsen, Oxford, Clarendon Press, forthcoming (Edinburgh ALSP Conference paper, 1981); Troper, supra note 11 at 527. J.W. Harris has advanced a possible solution, although it is one which would take Kelsen beyond the scope of positivity as he defines it; he suggests that formal authorisation results from the institutional roles of the actors, and not from a specific norm or a rule which confers authority: “Kelsen's Concept of Authority”, 36/2Cambridge Law Journal (1977), 358f.; idem,Law and Legal Science, Oxford, The Clarendon Press, 1979, 87f.

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Jackson, B.S. Kelsen between formalism and realism. Liverpool Law Rev 7, 79–93 (1985). https://doi.org/10.1007/BF01079079

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