Philosophie du droit

Philosophie du droit II

Context unification of Austrian empire with different ethnic groups so he thought that law was a tool to help people live together. In the same time in Germany, law was thought to be rooted in the identity of the people. Kelsen ideas don’t consider wright a legal system based on a national identity forgetting minority and other people. For Kelsen there is on such things as THE people. The law is not based in some Volkgeist (a german loanword literally meaning “spirit of the people” or “national character”)

Hans Kelsen appartient au mouvement du positivisme juridique, qui s'oppose au jusnaturalisme en prétendant décrire objectivement tout système juridique, sans faire appel à des valeurs morales extrinsèques au droit.

Chain of validation

the idea that a legal rule is only validate if it’s proper validate by another proper legal rule

ex:  Trafic rules

• need Legal authority
• An endowment rule written down that delegates legal authority
• Administration regulation
• Constitution 🡪 parliament
• Revolutionary Decision

We must presuppose the foundation of norms and rules as self-validating

A presupposition law In Kelsen’s works, one can find language to the effect that the presupposition of the Basic Norm is required to make “possible the interpretation of the subjective sense of [certain material facts] as their objective sense, that is, as objectively valid norms ...”. At the same time, Kelsen makes it clear, in a number of places, that one need not presuppose the Basic Norm. In particular, Kelsen notes that the anarchist need not, and would not, see the actions of legal officials as anything other than “naked power”, with the legal system being for them nothing more than the “gunman situation writ large”.

https://journals.openedition.org/revus/3984#ftn12

The hierarchy of norms is like a fine layer of veneer

The law doesn’t exist but the fact that we all want to live under law made it real

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