A critical reconstruction of the negative aspect of the theory of law in Hans Kelsen

Abstract

The paper carries out a critical reconstruction of Hans Kelsen’s theory of law. According to it, Kelsen’s work can be divided in three logical steps: i) the construction of a scientific program, which is formed by Kelsen’s theory of validity and by his understanding of the structure of the legal norm; and the realization of this program, which itself can be divided in ii) a negative step and iii) a positive step. The negative realization of the program comprises Kelsen’s radical critic on the traditional concepts of jurisprudence and legal reasoning, while the positive realization of the program consists on the development of a whole model whose aim is the understanding of the legal order as a dynamic system which regulates and carries out constantly its own reproduction. The paper attempts to present a reconstruction of both the core of Kelsen’s program and the negative step of its realization.