Kelsen and the Justice
| Autor | Hannele Isola-Miettinen |
| Páginas | 86-105 |
Kelsen and the Justice
Hannele Isola-Miettinen[1]
1. Introduction
Hans Kelsen (1881-1973) definitely has had a great influence on
European legal theoretical and constitutional thinking. We know him
as a legal positivist and as a founder of the “pure theory of law”. We
know well Hans Kelsen’s dogma on the Gründnorm (basic norm),
understood as a necessary presupposition of any positivistic
interpretation of the legal material[2], the hierarchy of norms he
established and his principles of interpretation (lex posterior derogat
priori, etc.).
This paper analyses Kelsen’s writings concerning “the justice”,
his attitude towards the concept of justice and arguments why he
rejected the concept of justice in his pure theory. Or did he? What
Kelsen actually though about other values related to the justice, like
basic rights or fundamental rights, values in pluralism and what were
the choices, and arguments in this respect, he made in his pure
theory of law.
We have learned and we are used to that argument that Kelsen
excluded the idea of justice from his pure theory of law. Kelsen
actually grasped a lot the natural law idea, the concept of justice and
topics like achieving knowledge about justice, in general or achieving
knowledge about the justice in the work of law giver.
Hans Kelsen’s writings were born in the era of big “isms”. That
era was the sequence of events when the nation states were
strengthening their status in Europe. There was a tendency of
polarisation of “isms” in the political climate of Europe of that time.
And, as a matter of fact, the whole European constitutional court
system, first in Austria, later in the most European countries, is
based on the proposals given by Hans Kelsen. Kelsen’s influence on
European constitutional doctrine is immense. Vinx writes that
Kelsens’ political-theoretical works were “honest” in that respect that
he did not wore two hats but explained the starting points of his pure
theory of law[3].
2. Definition of law in Kelsen’s theory
For Kelsen “Law is an order of human behaviour” and “An order
is a system of rules.”[4] Kelsen writes “Law is not, as it is sometimes
said, a rule” but “It is a set of rules having kind of unity we
understand by a system”[5] Kelsen writes “Every rule of law obligates
human beings to observe a certain behaviour under certain
circumstances.”[6].
For Kelsen the norm functions as a scheme of interpretation both
in the physical world and in the law. Kelsen explains that the “legal
cognition” separate the human law from the laws of causality
prevailing in nature[7]. And Kelsen explains the “is” and “ought”
worlds do that the objective meaning of the “ought” is called norms.
In this legal cognition of Kelsen’s theory and in the “ought” world
Kelsen finds two dimensions, the subjective and the objective.
Namely “…legislative act, which subjectively has a meaning of
ought, also has a objective meaning”. That objective meaning for
Kelsen is the meaning of a valid norm “…because the constitution
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