Hans Kelsen’s Pure Theory of Law: Character of Modern Jurisprudence

Abstract

The article describes the state of modern jurisprudence as mainly positive (normative). Further the article shows the crucial role of Austrian jurist Hans Kelsen’s (1881–1973) theory in forming the idea of “pure law” in the mid-20th century. Normativity declares systematic, logic and gapless character of law as its basic qualities. However, these qualities of law are formed only at the expense of denial of religious and moral prehistory of law. The concept of natural law (including the one implied in the text of the Constitution of the Russian Federation) is currently declared as primary, though in fact it does not determine any practice of law enforcement. The result of such utilitarian view of law will be its total “purification” in Hans Kelsen’s terms when the content of a specific rule of law will be determined not by timeless values, but by expediency. The principles of justice, humanity, mercy, good faith and morality declared by law acquire, in fact, a new — inhumane — content. Hans Kelsen’s Pure Theory of Law continues to dominate in the national science of law.

DOI 10.14258/izvasu(2017)6-01