Topic 7 - Kalsen

Question 1

Who was Hans Kelsen?

Answer 1

An Austrian lawyer and philosopher influential in modern legal positivism.

Question 2

What is Kelsen’s view of law as a social organization?

Answer 2

A system guiding officials on when and how to apply sanctions, focusing on normative structure.

Question 3

Define Grundnorm.

Answer 3

The foundational presupposition underlying the validity of all legal norms.

Question 4

What is the nature of the Grundnorm?

Answer 4

A transcendental, epistemological assumption enabling legal system coherence.

Question 5

What does ‘transcendental’ refer to in Kelsen’s theory?

Answer 5

Conditions necessary for knowledge or experience related to legal validity.

Question 6

What does ‘epistemological’ mean in Kelsen’s context?

Answer 6

Concerned with the nature and limits of knowledge, not a moral function.

Question 7

What is a norm according to Kelsen?

Answer 7

A prescriptive rule guiding behavior.

Question 8

How does Kelsen differentiate his Grundnorm from ethical-political postulates?

Answer 8

The Grundnorm is not meant to have normative moral or political content.

Question 9

How do Kelsen’s Grundnorm and Hart’s rule of recognition differ?

Answer 9

Kelsen emphasizes an assumed basic norm; Hart treats it as a social rule accepted by officials.

Question 10

What is Kelsen’s theory of legal validity based on?

Answer 10

A hierarchy of norms whose validity depends on the Grundnorm.

Question 11

What is the relationship between validity and effectiveness in Kelsen’s theory?

Answer 11

Validity depends on the Grundnorm; effectiveness requires actual compliance and enforcement.

Question 12

What is Kelsen’s view on legal revolutions?

Answer 12

The Grundnorm may change with a successful regime overthrow, altering the basis of legal validity.

Question 13

What is the significance of the unity of the legal system in Kelsen’s theory?

Answer 13

The legal system is a unified hierarchy grounded in the Grundnorm for coherence.

Question 14

What criticism do natural law theorists have of Kelsen’s approach?

Answer 14

It neglects moral and interpretive dimensions of law.

Question 15

What is a pro of Kelsen’s clarity and scientific approach?

Answer 15

Provides a rigorous, systematic description of law, separating it from morality and politics.

Question 16

What is a con of Kelsen’s overly formal and abstract theory?

Answer 16

It can be impractical for real-world legal complexities.

Question 17

What does Kelsen’s conceptual coherence address?

Answer 17

Solves the infinite regress problem in legal validity with a foundational norm.

Question 18

How does Kelsen’s theory accommodate flexibility of content?

Answer 18

It does not depend on moral content, allowing analysis of any legal system.

Question 19

What insight does Kelsen provide regarding validity and effectiveness?

Answer 19

Clarifies the distinction between legal legitimacy and enforcement.

Question 20

What problems arise from Kelsen’s theory regarding unjust legal systems?

Answer 20

It may recognize oppressive laws as valid if they meet formal criteria.

Question 21

How does Kelsen’s theory compare with Dworkin’s theory of law?

Answer 21

Kelsen separates law from morality; Dworkin integrates law with moral reasoning.

Question 22

What is the role of judges in Kelsen’s theory?

Answer 22

Judges apply norms as prescribed by the legal hierarchy without shaping moral content.

Question 23

What is the main criticism of Kelsen’s assumption of the Grundnorm?

Answer 23

It is a hypothetical construct, unprovable and accepted only as a presupposition.

Question 24

In what way does Kelsen’s theory limit practical usefulness?

Answer 24

It may be less relevant for practitioners focused on rights and procedures.

Question 25

Fill in the blank: Kelsen’s theory provides a ________ framework for legal analysis.

Answer 25

clear conceptual

Question 26

True or False: Kelsen's legal theory incorporates moral considerations.

Answer 26

False

Question 27

What is the Grundnorm in legal theory?

Answer 27

A hypothetical and questionable foundational norm from which all legal norms derive. ## Footnote The Grundnorm serves as a basis for the validity of a legal system, but its existence is debated.

Question 28

What are the criticisms of the Grundnorm?

Answer 28

Seen as overly formalistic, abstract, ignoring justice and moral content. ## Footnote Critics argue that it does not adequately address the moral implications of law.

Question 29

How does legal change occur according to Kelsen?

Answer 29

Legal change is driven by reinterpretation and principles; law evolves to reflect changing moral understandings. ## Footnote This view challenges the notion of a static legal system.

Question 30

What is a delict in Kelsen's legal theory?

Answer 30

A condition or circumstance that triggers officials' obligation to impose sanctions. ## Footnote Delicts are not violations of legal norms but rather acts that activate the legal system's response.

Question 31

Who does Kelsen argue breaks the law?

Answer 31

Only officials can genuinely break the law, as they are the addressees of legal norms. ## Footnote Citizens' wrongful acts do not break legal norms; they merely create conditions for legal action.

Question 32

What is the distinction between primary and secondary norms?

Answer 32

Primary norms dictate official conduct, while secondary norms govern the creation and application of primary norms. ## Footnote This distinction helps clarify the structure of legal systems.

Question 33

True or False: Citizens are directly commanded by legal norms.

Answer 33

False. Legal norms are primarily commands directed at officials, not citizens. ## Footnote The law informs officials how to act in response to citizens' actions.

Question 34

Fill in the blank: According to Kelsen, the legal norm 'one shall not steal' is directed to _______.

Answer 34

[officials] ## Footnote The actual command for action is directed towards officials who impose sanctions.

Question 35

What is the practical application of Kelsen's legal theory?

Answer 35

Provides a rich framework for judicial decision-making involving moral reasoning and rights. ## Footnote Although it has limited direct application in practical adjudication, it enhances understanding of legal processes.

Question 36

What is the role of officials in Kelsen's theory?

Answer 36

Officials are empowered to apply sanctions and interpret legal norms. ## Footnote Their role is crucial in maintaining the integrity of the legal system.

Question 37

What does Kelsen mean by the 'purity' of legal positivism?

Answer 37

Maintaining a distinction between law and morality, where law is viewed as a system of norms. ## Footnote This perspective emphasizes the objective nature of law, separate from social facts.

Question 38

What does Kelsen argue about legal norms?

Answer 38

Legal norms are primarily commands directed at officials, instructing them to apply sanctions or exercise legal powers. ## Footnote Laws empower officials to act rather than command citizens directly.

Question 39

What do citizens commit instead of breaking legal norms?

Answer 39

Citizens commit 'delicts', which are unlawful acts or breaches that trigger officials' legal powers to impose sanctions. ## Footnote A citizen who steals creates factual conditions allowing the legal system to respond.

Question 40

What are primary legal norms according to Kelsen?

Answer 40

Primary legal norms dictate official action and are the true legal rules. ## Footnote Examples include norms that authorize punishment for offenses.

Question 41

What distinguishes secondary legal norms from primary norms?

Answer 41

Secondary norms describe social duties or prohibitions but are not legally binding in the strict sense. ## Footnote The norm "One shall not steal" is a secondary norm that facilitates communication.

Question 42

Who can be said to break the law according to Kelsen?

Answer 42

Only officials can truly break the law by failing to fulfill their legal obligations properly. ## Footnote Citizens do not break legal norms but cause conditions requiring officials to act.

Question 43

What is the goal of Kelsen's theory regarding legal science?

Answer 43

Kelsen aims to describe law scientifically and purely, isolating legal norms from morality, political considerations, or social context. ## Footnote This 'purity' allows law to be studied objectively.

Question 44

How does Kelsen view the usefulness of secondary norms?

Answer 44

Kelsen accepts the usefulness of secondary norms for simplifying the representation and comprehension of law in everyday discourse and legal education. ## Footnote These norms aid in understanding but are not genuine legal norms.

Question 45

What is the central project of Kelsen's Pure Theory of Law?

Answer 45

To develop a 'pure' science of law that systematically describes law as a system of norms without ethical, political, or social judgment. ## Footnote Kelsen focuses on 'what the law is' rather than 'what it ought to be'.

Question 46

What characterizes a norm in Kelsen's theory?

Answer 46

A norm is essentially action-directing, telling officials what they ought to do and imposing duties or conferring powers. ## Footnote For example, it may grant judges the power to impose sanctions.

Question 47

True or False: Citizens directly break legal norms when committing offenses.

Answer 47

False. ## Footnote Citizens commit delicts that create conditions for officials to act, but do not break the norms themselves.