Kelsen and Justice
| Autor | Hannele Isola-Miettinen |
| Ocupação do Autor | Lic.Adm.Sc (Public law). University of Eastern Finland |
| Páginas | 29-43 |
Speacial Workshop: Hans Kelsen Today • 29
Kelsen and Justice
Hannele Isola-Mieinen1
Abstract: Hans Kelsen has had a great inuence on the European legal theo-
retical thinking. We know him as a so called positivist and as a founder of the
“pure theory of law”. Kelsen saw that law is social phenomena, in its nature.
For Kelsen the law is legal norms. But because of the scientic aitude to law,
Kelsen wanted to separate and purify the concept of law from other norms in so-
ciety, like political or moral system of norms. Kelsen excluded the idea of justice
from his concept of law. Although doing so, Kelsen reected wide the principle
of justice in his writings. He concentrated to study how to achieve knowledge
about the justice and, more deeply, how to cope justice in the work of law giver.
This paper analyses Kelsen’s writings on justice and his arguments about jus-
tice in his denition of concept of law. Hans Kelsen developed his theory in
the era of big “isms” and in the sequence of events when nation states were
strengthening their status in Europe. For example, the European constitutional
court system, rst established in Austria and later in most European countries,
based their systems on the legal architecture and idea by Hans Kelsen. Kelsen in
his writings was reecting deeply the problem of pluralism and the polarisation
of the great “isms”. Kelsen’s choice in this turbulent political situation was
the scientic aitude to law. In his theory he put aside the content of law, also
the values and principles like justice. He invented the “Grundnorm” to present
kind a hypothetical basic norm of law in his theory.
1. Introduction
Hans Kelsen (1881-1973) denitely has had a great inuence on
European legal theoretical thinking. We know him as a legal positiv-
ist and as a founder of the theory named the “pure theory of law”. We
also know well Hans Kelsen’s dogma on the Grundnorm (basic norm),
understood as a necessary presupposition of any positivistic interpre-
1 Lic.Adm.Sc (Public law). University of Eastern Finland. E-mail: hannele.isola-mi-
ettinen@kolumbus.
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