Chapter 3 Comments on the Kelsenian Idea of Natural Law in the Light of Althusius’ Theory of Law

In: Hans Kelsen and the Natural Law Tradition
Gaëlle Demelemestre
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In his work of 1928, Kelsen undertakes a systematic comparison of natural law and positive law in order to provide an enhanced comprehension of their specificities. This centres upon the difference of their nature and origin in which natural law is subject to critique in comparison to a theory of positive law based upon the principle of imputation. The hierarchical structure of norms of positive law is founded upon a deductive movement in which the Kelsenian conception situates us in a systematic, self-referential system. The Kelsenian theory of positive law, offers a detached description of positive law which propounds a theory of validity which merely requires the particular legal norm to result, at each level of the hierarchy, from the competent authority. However, this is one of the most perplexing aspects of Kelsenian project of a legal science of positive law: how could positive law, as an entirely human creation, possibly be free of any evaluation? Is it sufficient, for an authority, to be empowered to make the law for it to have the power to compel? The relevance of a return to Althusian legal theory results from the fact that Althusius develops his ideas in response to a self-centred theory of power and law which is, analogous to the Kelsenian position, unreceptive to evaluative criticism. This chapter will, through an examination of Althusian theory, indicate how the power to coerce can claim to be sovereign and yet integrate supervisory bodies responsible for regulating its validity.

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