Pure Theory of Law

Kelsen, Hans

doi:10.1525/9780520312296

Cited by 954 publications

(101 citation statements)

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“…The discipline of law has the capability to reconstruct the individual and the general legal normwhich are created by the legal authoritiesto become a whole system, the "system" of law. Kelsen (1967) With the basis of the hierarchic theoretical structure (Stufenbaulehre), the pure theory of law is based on the understanding that a principle of law is a set of principles (stufenbau). At the peak of the "stufenbau" set of principles, there is the "grundnorm," which is the fundamental principle which is result of juridical thoughts.…”

Section: Discussionmentioning

confidence: 99%

“…At the peak of the "stufenbau" set of principles, there is the "grundnorm," which is the fundamental principle which is result of juridical thoughts. A set of legal principles is a hierarchic system of legal principles, which are (Kelsen, 1967; Figure 4): legal principles from the constitution; general or abstract legal principles in the constitution or habitual law; individual legal principles or concrete courtly legal principles.…”

Section: Discussionmentioning

confidence: 99%

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Law, philosophy and disasters: earthquake-handling case in Yogyakarta, Indonesia

Wardiono

Dimyati

Absori

2021

IJLMA

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Purpose This paper aims to synchronize the various constitutional regulations that regulate the natural disaster management in Indonesia, especially those which apply in the Yogyakarta Special Territory after disaster through a legal interpretation and construction method to find a community empowerment-based disaster management model, which suits the Indonesian ideals of law. Design/methodology/approach This research is carried out in the Yogyakarta Special Territory province; this research uses the juridical normative method or the method with the doctrinal or the juridical normative approach. The approaches used in this research are the conceptual approach, statute approach and the sociological approach. Findings The numerous constitutional regulations that are formed and implemented to regulate the disaster management in Yogyakarta Special Territory cannot yet run its function as an integrating mechanism efficiently. This is mainly because the handling of disasters is usually responsive, without clear planning. Research limitations/implications In numerous constitutional regulations, there is a synchronization between the regulations on the society’s rights and responsibilities in disaster management. The point of these regulations is that they state that every citizen has the right to obtain social protection and a sense of safety. They have the right to obtain education, trainings and skills in the establishment of disaster management. Also, they have the right to participate in policies, in accessing information on disaster prevention policies. Practical implications Efforts of response toward a disaster should be neither exclusive nor partial. A condition of disaster is a complex condition, which usually asks for a holistic response from various perspectives and experiences. It needs effective teamwork between various institutional groups. Basically, it will not be effective if it is run by a single agency exclusively. Indonesia needs a clear disaster management and needs to synchronize the law for disaster mitigation for minimize the natural disaster impact. Social implications Various constitutional regulations made and applied to regulate disaster management in the Yogyakarta cannot yet run its function as an efficient integrating mechanism, as the law cannot yet undergo the rearrangement of the productive process in the society optimally. The goals determined in the execution of the disaster management are often not legitimized by the society, and they do not yet give a full sense of justice to them. Recovery after Yogyakarta earthquake is a slow process. Originality/value This is a relatively new research, as other researches focused on the disastrous impacts of the Yogyakarta earthquake. The disaster management system must consider and must be responsive toward diversity, differences and competition, which may arise due to social, economic, political, community and even religious factors. These differences often create a dynamic and complex relation. A wrong manner in handling this may cause horizontal conflicts.

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Section: Discussionmentioning

confidence: 99%

Section: Discussionmentioning

confidence: 99%

Law, philosophy and disasters: earthquake-handling case in Yogyakarta, Indonesia

Wardiono

Dimyati

Absori

2021

IJLMA

View full text Add to dashboard Cite

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“…26, 27]. Kelsen's normativism, then, in juxtaposing legal science and natural science, considers the norm as the mere center of attribution of rights and duties to subjects based on rules laid down by the legal system [34]. Apparently, Kelsen overcomes the finality of positive law by basing it on logic and science; in reality, he reopens the debate on the fictional foundation of law [24,25].…”

Section: Legal Fiction and Legal Entity: A Brief Summarymentioning

confidence: 99%

Person and Disability: Legal Fiction and Living Independently

Heritier

2021

Int J Semiot Law

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Without extending the historical analysis, this article analyzes the relationship between the legal concept of person with regard to the notion of living independently. The concept is normatively established in Article 19 of the CRPD and is presented as a legal fiction. The legal technique of fictio iuris is the premise for analyzing contemporary problems, for example, the attribution of responsibilities to non-human personalities, such as robots. The article, however, develops the problem of attributing rights to persons with disabilities. The contraposition of robots and disabled people, understood as opposing visions of anthropological and human models, is part of the philosophical dispute between humanism and post- or transhumanism. The conception of man appears different if created in the image and likeness of God, or as the fruit of evolution from primates, or as a transhumanist entity that can be replaced by the robot. The latter vision is rooted in the mechanization of the mind triggered by cybernetics and cognitive sciences and referable to problems of justice theory and political philosophy concerning the inclusion in society of disabled people. In this article I will limit myself to analyzing, against the background of this complex problem, the link between person, legal fiction and the right to disability starting from the criticism addressed by Nussbaum to Rawls based on the convention and following the methodology developed by Marchisio and Curto in order to clarify the legal connection between thirdness, disability, and person.However, I go one step further by including the issue of disability as justice within the evolution of the notion of the legal person, through the inclusion of fictio iuris and rhetorical methodology in positive law, as a criterion for the interpretation of art. 19 CRPD.

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“…For example, this fiction prevents the police from being perceived as a questionable political competitor since the legal order is simultaneously construed as being beyond and above politics. The self-referential character of the legal order, as depicted by Hans Kelsen's fiction of a ''basic norm'' (Grundnorm), hence corresponds to a theoretical and practical necessity: 34 it is to dissimulate that ''it takes confrontation outside the law to make the law itself.'' 35 It is only under this condition that it can establish the founding difference without which there can be no ''civil peace.''…”

Section: The ''Monopoly'' and Its Historical Conditions Of Possibilitymentioning

confidence: 99%

“Legitimate Violence” in the Prose of Counterinsurgency

Olsson

2013

Alternatives: Global, Local, Political

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Drawing on a critical engagement with the claims made by (and interpretations of) the 2006 US army and marine corps field manual on “Counterinsurgency,” this article engages some of its underlying concerns with the problematic relation between violence, legitimacy, and political order. Since this manual draws heavily on many commonplaces of contemporary political science, the analysis explores their problematic presuppositions and the ways in which they play out in contemporary warfare. The primary conclusion is that while the encounter of legitimacy and violence is claimed by the doctrine to produce and maintain political order, its framing of this encounter is deeply rooted in a specific political order, that of the modern state, which severely constrains the conditions under which this encounter can take place. These constraints cast serious doubts on many of the doctrine’s assertions, especially as they have shaped recent wars in Afghanistan and, until recently, in Iraq.

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Pure Theory of Law

Cited by 954 publications

References 0 publications

Law, philosophy and disasters: earthquake-handling case in Yogyakarta, Indonesia

Law, philosophy and disasters: earthquake-handling case in Yogyakarta, Indonesia

Person and Disability: Legal Fiction and Living Independently

“Legitimate Violence” in the Prose of Counterinsurgency

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