General Theory of Law and StateReprint of the first edition. This classic work by the important Austrian jurist is the fullest exposition of his enormously influential pure theory of law, which includes a theory of the state. It also has an extensive appendix that discusses the pure theory in comparison with the law of nature, positivism, historical natural law, metaphysical dualism and scientific-critical philosophy. "The scope of the work is truly universal. It never loses itself in vague generalities or in unconnected fragments of thought. On the contrary, precision in the formulation of details and rigorous system are characteristic features of the exposition: only a mind fully concentrated upon that logical structure can possibly follow Kelsen's penetrating analysis. Such a mind will not shrink from the effort necessary for acquainting itself with...the pure theory of law in its more general aspects, and will then pass over to the theory of the state which ends up with a carefully worked out theory of international law." Julius Kraft, American Journal of International Law 40 (1946):496. Possibly the most influential jurisprudent of the twentieth century, Hans Kelsen [1881-1973] was legal adviser to Austria's last emperor and its first republican government, the founder and permanent advisor of the Supreme Constitutional Court of Austria, and the author of Austria's Constitution, which was enacted in 1920, abolished during the Anschluss, and restored in 1945. He was the author of more than forty books on law and legal philosophy. Active as a teacher in Europe and the United States, he was Dean of the Law Faculty of the University of Vienna and taught at the universities of Cologne and Prague, the Institute of International Studies in Geneva, Harvard, Wellesley, the University of California at Berkeley, and the Naval War College. |
Contents
THE ELEMENTS OF THE STATE | 207 |
The People of the State | 233 |
The Competence of the State as the Material Sphere of Valid | 242 |
F The socalled Fundamental Rights and Duties of the States | 248 |
G The Power of the State | 255 |
THE SEPARATION OF POWERS | 269 |
DEMOCRACY AND | 283 |
Autocracy | 300 |
| 77 | |
| 84 | |
COMPETENCE LEGAL CAPACITY | 90 |
The Juristic Person | 96 |
B The Law as a Dynamic System of Norms | 113 |
THE HIERARCHY OF THE NORMS | 123 |
NORMATIVE AND SOCIOLOGICAL JURISPRUDENCE | 162 |
THE LAW AND THE STATE | 181 |
The State as Subject of Duties and Rights | 197 |
E The international legal community | 325 |
B International Law and State | 341 |
The Unity of National and International Law Monism | 363 |
APPENDIX | 389 |
The Basic Norm of Positive | 395 |
C | 401 |
93 | 479 |
95 | 489 |
Juristic person and representation | 497 |
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Common terms and phrases
according actually annulled applied authority basic norm central character citizens civil coercive acts cognition competent concept concrete condition considered constitution contents contract contradiction coup d'état courts creation criminal customary law decentralization delict democracy determined dualism duties and rights efficacy elected electoral established executive existence fact federal function Hans Kelsen higher norm idea imputed individual norm international law international legal order international treaty interpretation judicial decision juristic person justice Kelsen law-creating legal community legal duty legal norm legal philosophy legal positivism legal transaction legislative organ lower norm means national law national legal order natural law natural-law doctrine norm created normative jurisprudence party political positive law possible prescribed presupposed principle procedure question reality Recht recognition regulated relation rule sanction secondary norm sense so-called social order sociological jurisprudence sociology of law sphere of validity statute stipulated system of norms territorial sphere tion tional law valid norms violation
Popular passages
Page 166 - People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.
Page 10 - The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.
Page 166 - I shall try to show, a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; — and so of a legal right.
Page 227 - Any fully self-governing State, Dominion or Colony not named in the Annex may become a Member of the League if its admission is agreed to by two-thirds of the Assembly...
Page 9 - THUS, when the Supreme Being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be. When he put that matter into motion, he established certain laws of motion, to which all moveable bodies must conform.
Page 9 - And consequently as man depends absolutely upon his Maker for everything, it is necessary that he should, in all points, conform to his Maker's will. This will of his Maker is called the law of nature. For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion ; so, when he created man, and endued him with...
Page 166 - The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.
Page 9 - ... nutrition, digestion, secretion, and all other branches of [*39] rital economy ; are not left to chance, or the will of the creature itself, but are performed in a wondrous involuntary manner, and guided by unerring rules laid down by the great Creator. This, then, is the general signification of law, a rule of action dictated by some superior being...