International and European Legal Theory
Course - Prof. dr. Hernández Gleider
Seminar 1 – Legal Positivism 1
Hans Kelsen, a prominent legal scholar, sought refuge in the United States during World War
II due to the escalating horrors of the Holocaust. Despite being of Jewish descent, Kelsen
steadfastly upheld the assertion that Nazi law, reprehensible as it may have been morally and
ethically, constituted a legal system. This perspective underscores Kelsen’s commitment to the
principle that law is distinct from matters of morality and ethics.
Kelsen’s legal theory is a comprehensive framework that transcends specific legal systems. He
posited that international law, often perceived as a realm of politics, is in fact a domain of pure
law. Prior to Kelsen’s contributions, legal positivists had neglected to delve into the
fundamental question of why law must be law, a topic which he addressed as a distinct
discipline.
During the tumultuous period of World War II, there emerged a shift towards moral theory as
an attempt to elucidate the atrocities of the time. Kelsen, however, remained resolute in his
belief that moral, political, philosophical, and other extraneous aspects were irrelevant to the
realm of law. Legal scholars, he contended, are primarily concerned with the recognition and
utilization of laws once they attain legal status.
A central concept in Kelsen’s jurisprudence is the notion of a “grund norm.” The definition of
this term varies depending on the context. Some countries define it through a legal lens, while
others adopt spiritual, historical, or economic perspectives. The constitution plays a pivotal
role in embedding values within the legal fabric as a response to historical events.
Kelsen’s legal theory is characterized by its universality, applicable to any properly formed
legal system. It emphasizes the importance of the norm underlying the constitution itself. The
distinction between purely formal law and substantive law is essential, with particular emphasis
on the legal framework that permitted the adoption of the constitution.
The grund norm, according to Kelsen, represents a descriptive form through which one can
discern the authority responsible for establishing legal norms. Popular consent, whether
expressed by the people or derived from religious sources, constitutes the true grund norm.
When the people decide, legal norms become immutable. This concept encompasses extra-
legal origins, be they rooted in the populace or religion.
A significant divergence exists between the concepts of popular sovereignty and parliamentary
sovereignty. Various legal systems are founded on religious principles, while constitutional
monarchies entrust the people with the right to govern themselves and create their legal
systems.
One pertinent question arising from Kelsen’s theory is whether a grund norm permits the
people to resort to arms or peaceful means to safeguard fundamental rights safeguarded by the
grund norm. Notably, the German constitution includes an eternity clause, empowering citizens
to act if democracy is under threat. Similarly, the U.S. Constitution may be interpreted as
Page 1 of 27
,affording citizens the right to bear arms to protect democratic rights. However, the legitimacy
of such interpretations remains a subject of debate.
Kelsen’s perspective underscores that the functioning of a legal system is paramount,
regardless of the decision-making processes of the people. It prompts reflection on how legal
systems perceive themselves and how legal scholars evaluate them.
It is imperative to distinguish between normative jurisprudence and sociological jurisprudence
when contemplating the nature of law. International law also raises intriguing questions about
its origin: Did states create international law, or did it pre-exist them? When did states come
into existence, and when did international law first emerge as a discipline? Kelsen refrains
from providing definitive answers to these questions, asserting that the origins of the ground
law are not within the purview of law or legal scholars. He contends that the ground law is
extra-legal, and its origins must be accepted without further inquiry.
Nonetheless, the foundations of law are subject to challenge. In certain circumstances, even
when legal norms prescribe specific behaviours or prohibitions, contextual, historical, and
sociological factors may permit deviations from legal prescriptions.
To attain international recognition, a law must be adopted by enough states, thereby becoming
a prerequisite for the international community. This recognition is contingent on the consensus
of a significant majority of states, culminating in the establishment of an international law.
Seminar 2 – Legal Positivism 2
Herbert Hart, a distinguished professor at the University of Oxford during the mid-20th century,
made a profound impact on the field of legal positivism with the publication of his seminal
work, “The Concept of Law.” In this seminal text, Hart expounds upon the intricate nature of
law, emphasizing the crucial separation between law and monarchy. Hart’s contributions to
legal positivism are widely regarded as pivotal, not only in rejuvenating the field but also in its
vindication.
Central to Hart’s conception of a legal system is the pragmatic acknowledgment that law finds
its foundation in human actions and decisions. However, a pertinent question arises concerning
the burden placed on legislators in determining the relevance of social practices as potential
legal norms. To lend validity to these norms, certain external elements, such as obedience and
authority, come into play.
Nonetheless, Hart’s work leaves room for ambiguity. A distinction emerges between the rules
governing social interactions, often based on recognition, and the rules of law. While Hart
underscores the significance of recognition as a cornerstone of law, he does not delve deeply
into the implications of this reliance on obedience. Indeed, if obedience remains the sole
criterion for recognizing an act as law, it may seem insufficient. An excessively literal
interpretation of Hart’s theory might lead us back to a reliance on social practices grounded in
mere recognition.
Hart distinguishes his perspective from that of legal theorists such as Austin and Bentham in
several respects. The notion of law as a mere command does not comprehensively encompass
all types of legal rules, according to Hart. In contrast, Kelsen, while emphasizing the source of
Page 2 of 27
, rule validity, does not encounter the same conceptual limitations. However, this approach leads
to a monolithic system, with no distinctions drawn among various types of rules. Hart’s primary
objection to law as a sovereign’s command is its oversimplification; he contends that the
sovereign is also subject to the constraints of social forces.
According to Hart, a legal system is a structured amalgamation of primary and secondary rules,
with recognition being the vital condition for their union. This recognition is indispensable
because the very existence of law is contingent upon its ability to govern human interactions
within a society.
Kelsen, on the other hand, views law as a system inseparable from the grund norm. While the
absence of obedience can render law ineffective, its existence does not hinge on obedience
alone. In contrast, Hart places significant emphasis on social recognition, but posits that legal
rules must originate from individuals vested with the authority to create them.
Primary rules, as delineated by Hart, are prescriptive in nature, serving as commandments that
apply either universally or to specific groups. They possess definable content and substance.
Secondary rules, conversely, pertain to the establishment and application of primary rules,
providing the framework for a functional society.
Secondary rules come in three distinct forms: the rule of legislation, governing the creation of
rules (including constitutional, legislative, and administrative regulations); the rule of
adjudication, which pertains to interpretation, application, and enforcement (involving judges,
administrative bodies, and law enforcement); and the rule of recognition, a social construct
grounded in conventions and practices, rather than morality or natural law. The rule of
recognition is paramount, as it determines which rules are endowed with the power to create a
legal system, reflecting the consent and acknowledgment of the legal community.
Hart’s familiarity with the Common Law tradition in the United Kingdom informs his
perspective. Unlike jurisdictions that adopted formal, revolutionary constitutional moments
(as exemplified by the U.S. Constitution), the UK’s legal development is characterized by a
continuous evolution based on practices, social acceptance, and the gradual sedimentation of
different legal traditions. The absence of a written constitution in the UK is not indicative of a
deficiency; instead, it underscores the symbiotic relationship between society and the law, with
each shaping and being shaped by the other.
Distinguishing between the ultimate rule of recognition and the grund norm, it becomes evident
that the grund norm is a concept with a more substantive and theoretical character, serving as
the foundation of the legal order from an external standpoint. Conversely, the rule of
recognition is a descriptive, sociological concept that considers social practices and values.
While the grund norm’s source (e.g., the people, God, science, economics) is inconsequential
to Kelsen, Hart maintains that the rule of recognition is contingent on social recognition and
acceptance.
The question arises: why is the pure theory of law of any significance, and is it the sole path to
embracing legal positivism? According to Kelsen, a legal system must be autonomous and
self-contained. Conversely, Hart contends that the essence of legal positivism lies in
recognizing that law emanates from social forces, encompassing even laws of questionable
quality. In the external realm, what matters is not the perspective of a detached legal scholar
but the obedience of ordinary citizens to the law. Like Austin and Bentham, Hart acknowledges
Page 3 of 27
