Kelsen (The Continental Legal Positivist)

Question 1

What is Kelsen’s view of law?

Answer 1

1. Pure Theory: Law is not of empirical studies nor of morality (pure abstract concepts)
2. Law as Norms: Law is a set coerced norms, governed by ‘ought’ statements of what subjects of the law are required to do
3. Law as a sanction: Law is a coercive normative order

Question 2

What is Kelsen’s Norms Theory?

Answer 2

1. Law comprises a hierarchy of ‘ought’ statements (e.g. ‘Laws should command people to do something’) leading up to a GRUNDNORM/basic norm which validates following norms
   (like a triangle with the grundnorm at the top)

Question 3

What is Kelsen’s definition of a legal person?

Answer 3

One who:
1. Views the law DETACHEDLY; and

2. Doesn’t apply moral judgment to it

so as to advise others on what WILL be enforced (not what SHOULD be enforced)

Question 4

According to Kelsen, why should people obey the law?

Answer 4

It is up to the individual whether they want to obey the law

Question 5

What are two problems with Kelsen’s Pure Theory?

Answer 5

1. Similar to the rule of recognition?
   - - Rule of recognition is empirical, exists in legal system
   - - Grundnorm is a cognitive device to make sense of the legal system
2. What is grundnorm in UK legal order?
   - - If it looks like there’s two systems of law (judge-made and common), then grundnorm is not at a sufficiently high level of abstraction

Question 6

According to Kelsen, what should judges do when faced with unjust law?

Answer 6

??

He believes that a legal man’s perspective is a detached view of the law, i.e. concerned with what WILL be and not what SHOULD be enforced against you

Question 7

According to Kelsen, what is the relationship between law and morality?

Answer 7

1. Both law and morality focus on what subjects/people are required to do
2. BUT law is a system of coerced norms, morality is not