Hans Kelsen's Pure Theory of Law: Ethics, Interpretation, Integration

Hans Kelsen's Pure Theory of Law: Ethics and Legal Science

According to Hans Kelsen, ethics is a manifestation of morality, which, unlike law, is not coercive. Kelsen views law as a system of coercive norms.

Kelsen's Pure Science of Law

Kelsen proposes a "pure" science of law, drawing inspiration from Kant's concept of pure reason. To achieve this, he separates legal science, as a normative science, from the empirical sciences. He also distinguishes between the concepts of law and morality. Kelsen defines law, not morality, with a set of coercive norms. Morality, while influencing behavior, lacks the coercive enforcement mechanism inherent in law. This analysis is conducted by examining the object (natural or social) and the method (causal – "what is," or normative – "what ought to be").

The Hierarchy of Legal Norms

Kelsen posits that a valid legal norm can only derive its validity from a higher, also valid, norm. For example, a statute's validity stems from the constitution, which, in turn, derives its validity from a prior constitution. In cases of radical change, such as a coup d'état, the validity of the new legal order rests upon a fundamental norm, whose validity is based on the principle of effectiveness (i.e., the norm is generally obeyed in practice). This position, however, has been subject to criticism.

Interpretation and Integration in Legal Science

Interpretation

Interpretation involves determining the true meaning and scope of a legal rule. The meaning refers to the rule's intended significance. The scope defines the range of situations the rule covers. Before applying any legal norm, it must be interpreted to understand its meaning and applicability.

Integration

Integration of law addresses legal gaps or voids within the legal order. All legal systems acknowledge the potential for such gaps. These gaps arise because it is impossible for the legislature to foresee every possible situation that may occur in society. Integration provides mechanisms to address situations not explicitly covered by existing laws or other applicable legal norms.