General Theory of Law and State (Law and Society Series)

General Theory of Law and State is divided into two parts: the first devoted to law, the second to the state. Together these topics constitute the most systematic and comprehensive exposition of Kelsens jurisprudence. The volume is not only a compendium of Kelsens lifework; it is also an extension of his theories to embrace the problems and institutions of English and American law as well as those of the Civil Law countries. Indeed, references to Continental European law are minimal compared with examples, scattered throughout the text, taken from the U.S. Constitution and several American court cases. This is more than a concession to American readers; it signifies that Kelsens legal theory is truly general in that it accounts for the Common Law as well as the Civil Law. Part 1. Law -- Nomostatics -- I. Concept Of Law -- A. Law And Justice -- B. Criterion Of Law (law As A Specific Social Technique) -- C. Validity And Efficacy -- D. Legal Norm -- Ii. Sanction -- Iii. Delict -- A. Mala In Se And Mala Prohibita -- B. Delict As A Condition Of The Sanction -- C. Delict As Behavior Of The Individual Against Whom The Sanction Is Directed -- D. Identification Of The Delinquent With The Members Of His Group -- E. Delict Of Juristic Persons -- Iv. Legal Duty -- A. Duty And Norm -- B. Duty And The Ought -- C. Secondary Norm -- D. Obeying And Applying The Legal Norm -- E. Austin's Distinction Between Primary And Secondary Duties -- V. Legal Responsibility -- A. Culpability And Absolute Liability -- B. Duty And Responsibility; Individual And Collective Responsibility -- C. Austin's Concept Of Duty -- Vi. Legal Right -- A. Right And Duty -- B. Permission -- C. Legal Right In A Narrow Sense -- D. Right As A Specific Legal Technique -- E. Absolute And Relative Rights -- F. Right As Participation In The Creation Of Law -- G. Civil And Political Rights -- Vii. Competence (legal Capacity) -- Viii. Imputation (imputability) -- Ix. Legal Person -- A. Substance And Quality -- B. Physical Person -- C. Juristic Person -- Nomodynamics -- X. Legal Order -- A. Unity Of A Normative Order -- B. Law As A Dynamic System Of Norms -- C. Basic Norm Of A Legal Order -- D. Static And The Dynamic Concept Of Law -- Xi. Hierarchy Of The Norms -- A. Superior And The Inferior Norm -- B. Different Stages Of The Legal Order -- C. Legal Transaction (juristic Act) -- D. Nature Of Constitutional Law -- E. Relationship Between The Judicial Act And The Pre-existent Norm Applied By The Judicial Act -- F. Gaps (lacunae) Of Law -- G. General Norms Created By Judicial Acts -- H. Conflicts Between Norms Of Different Stages -- Xii. Normative And Sociological Jurisprudence -- A. Sociological Jurisprudence Not The Only Science Of Law -- B. Normative Jurisprudence As Empirical And Descriptive Science Of Law -- C. Prediction Of The Legal Function -- D. Specific Meaning Of A Juristic Statement -- E. No Prediction Of The Legislative Function -- F. Law Not A System Of Doctrines (theorems) -- G. Difference Between The Statements Of A Normative And Of A Sociological Jurisprudence -- H. Sociological Elements In Austin's Analytical Jurisprudence -- I. Predictability Of The Legal Function And Efficacy Of The Legal Order -- J. Irrelevancy Of Individual Circumstances -- K. Sociology Of Law And Sociology Of Justice -- L. Sociological Jurisprudence Presupposes The Normative Concept Of Law -- M. Object Of The Sociology Of Law: Behavior Determined By The Legal Order -- Part 2. State -- I. Law And The State -- A. State As A Real (sociological) Or Juristic Entity -- B. Organs Of The State -- C. State As Subject Of Duties And Rights -- D. Private And Public Law -- Ii. Elements Of The State -- A. Territory Of The State -- B. Time As An Element Of The State -- C. People Of The State -- D. Competence Of The State As The Material Sphere Of Validity Of The National Legal Order -- E. Conflict Of Laws -- F. So-called Fundamental Rights And Duties Of The States -- G. Power Of The State -- Iii. Separation Of Powers -- A. Concept Of Separation Of Powers -- B. Separation Of The Legislative From The Executive Power -- C. Not Separation But Distribution Of Powers -- D. Separation Of The Judicial From The Executive (administrative) Power -- E. Coercive Acts Of The Administrative Organs -- F. Direct And Indirect Administration -- G. Legal Control Of Administration By Ordinary Or By Administrative Courts -- H. Control Of Legislation By Courts -- I. Historical Role Of The Separation Of Powers -- J. Separation Of Powers And Democracy -- Iv. Forms Of Government: Democracy And Autocracy -- A. Classification Of Constitutions -- B. Democracy -- C. Autocracy -- V. Forms Of Organization: Centralization And Decentralization -- A. Centralization And Decentralization As Legal Concepts -- B. Static Concept Of Centralization And Decentralization -- C. Dynamic Concept Of Centralization And Decentralization -- D. Federal State And Confederacy Of States -- E. International Legal Community -- Vi. National And International Law -- A. Legal Character Of International Law -- B. International Law And State -- C. Unity Of National And International Law (monism And Pluralism) -- Appendix. Natural Law Doctrine And Legal Positivism -- I. Idea Of Natural Law And The Essence Of Positive Law -- A. Social Theory And The Problem Of Justice -- B. Principle Of Validity In Natural And Positive Law; The Factor Of Coercion; Law And State -- C. Ought: Absolute And Relative Validity -- D. Basic Norm Of Positive Law -- E. Immutability Of Natural Law -- F. Limitation Of The Natural-law Idea -- Ii. Natural And Positive Law As Systems Of Norms -- A. Unity Of Systems Of Norms -- B. Static Principle Of Natural Law And The Dynamic Principle Of Positive Law -- C. Limitation Of Positivism -- D. Positive Law As A Meaningful Order -- E. Subjective And Objective Meaning Of Legal Material -- F. Methodological Importance Of The Basic Norm In Positive Law -- Iii. Relation Of Natural To Positive Law. The Political Significance Of Natural-law Theory -- A. Exclusive Validity Of A System Of Norms: The Logical Principle Of Contradiction In The Sphere Of Normative Validity -- B. Norm As An Ought And As A Psychological Fact: Collision Of Duties And Contradiction Of Norms -- C. Law And Morals: The Postulate Of The Unity Of System -- D. Logical Impossibility Of The Coexistence Of Positive And Natural Law -- E. Impossibility Of A Relationship Of Delegation Between Natural And Positive Law -- F. Positive Law As A Mere Fact In Its Relation To Natural Law As A Norm -- G. Relation Of Natural To Positive Law In The Historical Natural-law Doctrine -- H. Natural Law As A Justification Of Positive Law -- I. Supposedly Revolutionary Character Of Natural-law Doctrine -- Iv. Epistemological (metaphysical) And Psychological Foundations -- A. Metaphysical Dualism -- B. Scientific-critical Philosophy. Hans Kelsen ; With A New Introduction By A. Javier Treviño. Originally Published: Cambridge, Mass. : Harvard University Press, 1949, C1945, In Series: 20th Century Legal Philosophy Series ; V. 1. Includes Bibliographical References (p. [447]-465) And Index. Translated From The German. Widely regarded as the most important legal theorist of the twentieth century, Hans Kelsen is best known for his formulation of the'pure theory of law', - within which the study of international law was his special field of work. The present volume,'General Theory of Law and State', first published in 1945, allowed Kelsen to adjust his pure theory of law to American circumstances after World War II. It also afforded him the opportunity to present to English-speaking readers his latest ideas on the supremacy of international law. The volume is divided into two parts: the first devoted to law, the second to the state. Together these topics constitute the most systematic and comprehensive exposition of Kelsen's jurisprudence. The volume is not only a compendium of Kelsen's lifework up to that time; it is also an extension of his theories,'to embrace the problems and institutions of English and American law as well as those of the Civil Law countries'. Indeed, references to Continental European law are minimal compared with examples, scattered throughout the text, taken from the U.S. Constitution and several American court cases. This is more than a concession to American readers; it signifies that Kelsen's legal theory is truly general in that it accounts for the Common Law as well as the Civil Law. A systematic treatise on jurisprudence,'General Theory of Law and State'is a substantial reformulation of Kelsen's ideas articulated in several of his previous books, written in German. The juridical principles put forth by the most important legal theorist of the twentieth century remain of great value. This volume will be read by legal scholars, political scientists, and intellectual historians. Widely regarded as the most important legal theorist of the twentieth century, Hans Kelsen is best known for his formulation of the "pure theory of law"-within which the study of international law was his special field of work. The present volume, General Theory of Law and State, first published in 1945, allowed Kelsen to adjust his pure theory of law to American circumstances after World War II. It also afforded him the opportunity to present to English-speaking readers his latest ideas on the supremacy of international law. The volume is divided into two parts: the first devoted to law, the second to the state. Together these topics constitute the most systematic and comprehensive exposition of Kelsen's jurisprudence.The volume is not only a compendium of Kelsen's lifework up to that time; it is also an extension of his theories "to embrace the problems and institutions of English and American law as well as those of the Civil Law countries." Indeed, references to Continental European law are minimal compared with examples, scattered throughout the text, taken from the U.S. Constitution and several American court cases. This is more than a concession to American readers: it signifies that Kelsen's legal theory is truly general in that it accounts for the Common Law as well as the Civil Law. A systematic treatise on jurisprudence. General Theory of Law and State is a substantial reformulation of Kelsen's ideas articulated in several of his previous books, written in German.The juridical principles put forth by the most important legal theorist of the twentieth century remain of great value. This volume will be read by legal scholars, political scientists, and intellectual historians. "Intended to reforumulate ... thoughts and ideas previously expressed in German and in French" in the author's Allgemeine Staatslehre (1925), Théorie général du droit international public (1928) and Reine Rechtslehre (1934)--Preface.