Henry Cohen summarises Hans Kelsen's pure theory of law thus-
Kelsen was a legal positivist.
i.e. law is a command
The "positivity" of law, in his words, lies in the fact that it is created and annulled by acts of human beings,
sovereigns or those acting for sovereigns
thus being independent of morality and similar norm systems.
This does not follow. A command may be defeated by the higher claim of morality, religion or some other normative system. Moreover, one defeated command may lead to loss of sovereignty or the power to command. Thus commands aren't independent of anything which might lead to their defeat or disregard.
This constitutes the difference between positive law and natural law,
Positive law may say it is natural and natural law might say that it is obvious that the Sovereign has commanded it or was just about to do so before deciding to invade Poland instead. Kelsen was a stupid man who couldn't tell the difference between shite which is only different by ipse dixit stipulation.
which, like morality, is deduced from a presumably self-evident basic norm which is considered to be the expression of the "will of nature" or of "pure reason."' Kelsen labelled his theory of positive law "the pure theory of law."
rather than the 'shit theory of law'. I wonder why?
He explained the nature of its purity: [I]t seeks to preclude from the cognition of positive law all elements foreign thereto.
This can't be done. Cognition is bound up with the entire web of predication. You can't even separate law from econ or biology.
The limits of this subject and its cognition must be clearly fixed in two directions:
No limits can be placed on any thing which is epistemic. German pedants were donkeys.
the specific science of law, the discipline usually called jurisprudence, must be distinguished from the philosophy of justice, on the one hand, and from sociology, or cognition of social reality, on the other.
Distinguishing things doesn't mean they have discoverable 'limits'.
The pure theory of law should be distinguished from the philosophy of justice.
Both are useless. Moreover, they may presuppose each other in various useless ways.
While the pure theory of law is a science
only in the sense that the sexy theory of astrology is a science
justice is an "irrational ideal"
it may be arbitrary. It isn't irrational.
and "a judgment of value, determined by emotional factors and therefore subjective in character."
Emotions are either Darwinian algorithms of the mind or we live in an occasionalist universe. There can be 'naturality' in that which is 'subjective' (i.e. has no observable metric) just as naturality may be lacking in an 'objective' configuration space- e.g. Arrow Debreu.
" The pure theory of law must also be distinguished from sociological jurisprudence.
Only in the sense that we must distinguish my attempt to donate sperm to the moon from ordinary cases of public exposure & indecent behaviour during the course of a School excursion to the Zoo.
Still, if you are too stupid to practice law & are stuck teaching it to people who are too stupid to practice law, then make such distinctions by all means.
The pure theory of law studies norms-"propositions that state how men should behave" -
There are no such norms. There are merely certain actions which are forbidden- that too in specific circumstances (e.g having a wank on the Tube or taking a dump on the steps of No.10 Downing Street).
whereas sociological jurisprudence studies what "is"-how people actually behave.
It is shit. Turds are incapable of studying anything except how to get smellier or squishier.
Thus, Kelsen agreed with neither the natural law theorists,
who thought laws could have 'naturality' (i.e. be 'non-arbitrary') or canonicity such that all jurisdictions would converge to the same rule. Since this hasn't happened even between Scots & English law, we can safely say the thing is a pipe dream.
who viewed law and morality as sharing the same basis,
Everything to do with human beings shares the same basis- e.g. wanking on the Tube & teaching this shite in a University.
nor the legal realists, who believed that law consists solely of "the actual decisions of courts that litigants must live with."
This is clearly false. Many things which are clearly justiciable are nevertheless res non lege decisae
Law as a Coercive Order
The coercive order is independent of law. I have the legal right to tell Mike Tyson he is totes gay & desperately wants to suck me off. Sadly, the coercive order which obtains has him punching off my fucking head if I try to exercise my right.
Kelsen viewed law as a coercive order of human behavior.
Did it stop the 'Night of the Long Knives'? No. Kelsen was clearly wrong. No wonder he couldn't get an Academic appointment when he first moved to the US.
Laws "command a certain human behavior by attaching a coercive act to the opposite behavior."
No. Those with the means of coercion command. My infant son used to beat the fuck out of me till I surrendered the TV remote to him so he could watch Tellytubbies. The odd thing was, he got me to clean up after myself and even do some cooking and cleaning. He didn't like his Mum having to act like my unpaid servant.
He disagreed, however, with the belief of John Austin, who
lived in a nice country where the 'Crown in Parliament' saw Justice as a service industry whose aim was utility- nothing more, save in egregious cases of repugnancy.
posited laws to be "a species of commands,"" since a command "is essentially a willing and its expression,"
or baby beating me or biting my nose till I changed the channel to 'Tellytubbies'. But, at a later point, even the neighbour's cat could get me to watch 'Aristocats' for the umpteenth time instead of 'Fist of Fury'. I'm lying. It is 'Pyaasa' that I watch continually.
and because it is doubtful whether some laws embody the true will of anyone."
There can be no doubt that, if everybody wants 'representative government', they go along with whatever legislative compromise proves 'incentive compatible'.
Many legislators enact laws without understanding them, let alone willing them.
They 'meta-will' them- i.e. will to will whatever results from some legislative process. But 'meta-will' is just 'will'.
Kelsen preferred to describe laws as norms or rules "stating that an individual ought to behave in a certain way, but not asserting that such behavior is the actual will of anyone."
In Civil Law, this may seem to be the case- e.g the conduct of a bonus paterfamilias with respect to culpa levis in abstracto. But, Hohfeld shows us the proper way to understand tort actions of this type. Essentially, you have an immunity if you show that your conduct was such as a person of the highest diligence would have exhibited in defending his own interest albeit it was a third party who was affected.
Hohfeld was the only jurist of the previous century who wasn't pants. Add in Coase's theorem & Myerson type incentive compatibility & ...what? We are back where we started- which is a good way to be if the alternative is being stuck up our own assholes.
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