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In: Hans Kelsen and the Natural Law Tradition
In: Hans Kelsen and the Natural Law Tradition
Authors: Peter Langford and Ian Bryan

Abstract

A significant part of Kelsen’s work is devoted to the methodological separation of a theory of positive law from natural law. The predominant impression of this process is of a determination to entirely sunder the conceptual framework of positive law from any continuing reliance upon natural law. However, certain of Kelsen’s works involve the appropriation of the notion of civitas maxima from the Jus Gentium Methodo Scientifica Pertractatum (1749) of Christian Wolff. The presence of this notion immediately raises the question of the relationship between Kelsen’s theoretical framework and the specific conception of natural law developed by Christian Wolff. It is through an examination of the transformation of this notion of civitas maxima that an important aspect of Kelsen’s relationship to the natural law tradition becomes apparent. The appropriation will be traced through the initial discussion in Kelsen’s Das Problem der Souveränität und die Theorie des Völkerrechts. Beitrag Zu Einer Reinen Rechtslehre (1920/1928), and its further exposition and development in Kelsen’s 1926 Lecture Course (‘Les Rapports de Système entre le Droit Interne et le Droit International’) at the l’Académie de droit international, in the Hague. In this manner, the significant methodological divergences between a Kelsenian theory of positive law, as a theory of legal monism according primacy to international law, and the Wolffian theory of natural law, as a theory of the law of nations, will become evident. This methodological divergence, however, should not obscure a more than residual affinity between Kelsen and Wolff concerning the cosmopolitical orientation of their thought.

In: Hans Kelsen and the Natural Law Tradition
Authors: Ian Bryan and Peter Langford

JHIL brill.nl/jhil © Koninklijke Brill NV, Leiden, 2012 DOI: 10.1163/138819912X13333544461353 Hans Kelsen’s Theory of Legal Monism. A Critical Engagement with the Emerging Legal Order of the 1920s Peter Langford a) and Ian Bryan b) a) Department of Law and Criminology, Edge Hill University, Ormskirk, United Kingdom b) Lancaster Law School, University of Lancaster, United Kingdom This article concentrates upon Hans Kelsen’s theory of legal monism, as presented in his Lecture delivered at the Académie de droit international , The Hague, in 1926. This Lecture propounds a legal theory which enables a critical engagement with the emerging legal order of the

In: Journal of the History of International Law / Revue d'histoire du droit international
Hans Kelsen and the Natural Law Tradition provides the first sustained examination of Hans Kelsen’s critical engagement, itself founded upon a distinctive theory of legal positivism, with the Natural Law Tradition. This edited collection commences with a comprehensive introduction which establishes the character of Kelsen’s critical engagement as a general critique of natural law combined with a more specific critique of representative thinkers of the Natural Law Tradition. The subsequent chapters are then devoted to a detailed analysis of Kelsen’s engagement with prominent theorists from the Natural Law Tradition. The volume concludes with an exploration, focusing upon the delineation of a non-positivist legal theory in the debate between Robert Alexy and Joseph Raz, of the continued presence of Kelsenian legal positivism in contemporary legal theory.
In: Hans Kelsen and the Natural Law Tradition
In: Hans Kelsen and the Natural Law Tradition
In: Hans Kelsen and the Natural Law Tradition
In: Hans Kelsen and the Natural Law Tradition
Authors: Ian Bryan and Peter Langford

Abstract

This article offers a critical assessment of the interpretative positions adopted by the European Court of Human Rights as to the applicability of Convention rights and freedoms to the deportation of “aliens” resident in the territory of a Contracting State. The article considers inconsistencies in the Court's jurisprudence and argues that these inconsistencies are a result of the characterisation of deportation proceedings as administrative events. The authors also explore the nature of Contracting States' deportation procedures and examine key features of the procedural guarantees afforded to non-nationals under the Convention and its Protocols. In addition, the authors consider the extent to which Convention notions of due process and natural justice are deemed germane to deportation proceedings. The article contends that disparities in the procedural protections accorded to nationals when compared with resident non-nationals conflict with the purpose of the European Convention on Human Rights are an avertable consequence of the primacy of State sovereignty.

In: Nordic Journal of International Law