On The Pure Theory of Law

Abstract

The Pure Theory of Law is a theory of positive law, not of a definite legal order, but of the law in general. It is a general theory of law. As such it is the most consistent version of that school of jurisprudence which is called legal positivism because it considers as “law” only positive law and refuses to recognize as law any other normative social order even if, in the usage of language, it is called “law”, as e.g. so-called “natural law”.Law is—according to the Pure Theory of Law—by its very nature a definite type of norm. As a “norm” the law is the specific meaning of an act of will directed at a definite human behavior. This meaning is: that men ought to behave in a certain way. Hence an essential presupposition of the Pure Theory of Law as a positivistic theory is the recognition of the fundamental difference between the “ought” and the “is”, between norms and assertions. Assertions describe a certain object; they are true or false; norms are not describing, but prescribing; they are neither true nor false; they are valid or non-valid. Hence it is necessary to distinguish as clearly as possible between legal norms established by the legal authority, and assertions of the science of law about legal norms, the sentences by which this science describes its object.

Influences on the Aufbau

“…to the English edition of Russell's 1914 Lowell Lectures, published as Our Knowledge of the External World as a Field for Scientifi c Method in Philosophy. 10 Of course, the distinction between verifi ability and truth parallels Carnap 's own distinction between the two concepts of reality. 10 Of course, the distinction between verifi ability and truth parallels Carnap 's own distinction between the two concepts of reality.…”

“…His mail to Neurath may have included "Carnap's Völkerbund-Statenbund", a two-part contribution to Politische Rundbriefe from 1918a that discusses how the "Free-Germans" might view the imminent "negotiations … for the organization of the world" and the founding of the League of Nations ( 1918a ). 10 Carnap 's diary notes that not having found Neurath at home fi rst time around, he subsequently spent six afternoons or evenings at his fl at. Sinnloses Schicksal oder Schuld", which was also intended for Politische Rundbriefe but remained unpublished, for there Carnap explicity addressed the role of the intellectual in the political domain (see 1918b and the discussions in Mormann 201 0 and Uebel 201 2).…”

Two logics of authority in modern law

“…65 Many legal positivists can feel driven to assume a similar position, claiming that these practices cannot genuinely be described as modes of applying and following valid, existing positive law. 66 Such accounts understand the traditional practices of legal reasoning as fraudulent law making under the guise of law application. They suggest a dichotomy between subversive (and clandestine) amelioration of existing law, on the one hand, and its actual application to particular cases, on the other.…”

Generally Accepted Accounting Principles: Perspectives From Philosophy of Law

“…Alchourron and Bulygin (1971) show that defining prohibitions and permissions as negations of each other makes the principle of prohibition ambiguous in that it either presupposes completeness of law (in our case , the GAAP) or is consistent with gaps in law (GAAP) . The third interpretation , due to Kelsen (1967) in his Pure Theory of Law defining a gap as a case to which ''it is impossible to apply the legal order'' , stated that there are no gaps in the law since if there is no applicable norm for a given case the judge can apply the whole legal order ; all acts not expressly prohibited by such order being permitted . This reasoning is not satisfactory since it is not clear why this version of prohibition principle should be a part of every legal order and the interpretation with respect to judges fits the above ''holes-in-trousers'' analogy .…”