HANS KELSEN, A TEORIA PURA DO DIREITO E O POSITIVISMO JURÍDICO [RESUMO PARA INICIANTES]

Summary

In this video, Cíntia Brunelli introduces Hans Kelsen's 'Pure Theory of Law,' explaining how Kelsen aimed to study law objectively, isolated from other disciplines like sociology and ethics. The theory emphasizes the importance of norms and their formal validity rather than moral or ethical content. Kelsen rejected natural law theories, focusing instead on law as a human construct. However, the video critiques Kelsen’s view, arguing that a legal system detached from values like justice can still lead to oppressive laws. The video invites viewers to explore the complexities of law and its role in society further.

Takeaways

• 😀 Hans Kelsen is known for his 'Pure Theory of Law,' which aims to analyze law objectively, free from interference from sociology, psychology, ethics, and political theory.
• 😀 Kelsen's primary goal was to establish law as an autonomous science, independent from other fields, with a focus on the 'norm' rather than subjective values.
• 😀 The 'Pure Theory of Law' focuses on law as it 'ought to be' (the 'ought-to-be' principle), without considering the factual world but instead focusing on the abstract norms that prescribe how people should behave.
• 😀 Kelsen argued that law should be based solely on the validity of norms, determined by whether they follow the correct procedure, rather than on moral or ethical considerations.
• 😀 He believed that law cannot be based on individual or subjective notions of justice, as this would lead to insecurity in the legal system and undermine its objectivity.
• 😀 Kelsen rejected the idea of natural law, which posits that law is based on inherent human rights. Instead, he viewed law as a human construct that could be modified as society sees fit.
• 😀 Kelsen's theory isolates the law from other academic disciplines, emphasizing its role as a self-contained system with a specific focus on normative validity.
• 😀 The principle 'Dura lex, sed lex' (The law is harsh, but it is the law) is central in Kelsen's approach, highlighting that once a law is validated, it must be followed, regardless of its fairness.
• 😀 Kelsen's legal theory has been criticized for neglecting the importance of justice, as it prioritizes legal validity over moral considerations, which can lead to unjust laws.
• 😀 Despite its theoretical elegance, Kelsen's 'Pure Theory of Law' is considered unsustainable in real-world applications because it overlooks the broader social context and the moral implications of laws.

Q & A

What is Hans Kelsen's main contribution to legal theory?

Hans Kelsen's main contribution is the 'Pure Theory of Law,' which aims to analyze law as a distinct, objective science, free from influences such as sociology, psychology, ethics, and political theory. His goal was to study the structures of law independently from other fields.

How does Kelsen define the role of law in society?

Kelsen defines law as a system of norms that dictate what should be done (the 'ought-to-be'), rather than what is. Law, for Kelsen, is not concerned with the morality or justice of the actions but with whether the norms are valid, based on their correct enactment and integration into the legal system.

What is the relationship between law and morality in Kelsen's theory?

Kelsen argues that law and morality should be separate. He believes that basing law on subjective moral values is problematic because moral views vary from person to person. Therefore, law should be concerned solely with the validity of norms, not their moral or ethical implications.

What does Kelsen mean by 'validity' of a law?

For Kelsen, the validity of a law refers to whether it follows the correct procedures for enactment and integration into the legal system. A law is valid if it is passed through the proper channels and is accepted within the legal framework, regardless of whether it is deemed just or unjust.

Why does Kelsen reject the concept of natural law?

Kelsen rejects natural law because he believes there are no eternal, immutable laws inherent to human beings. He argues that all legal norms are human-made and can be modified as needed to fit the needs and circumstances of society.

How does Kelsen's theory view the connection between law and social justice?

Kelsen's theory maintains that law is not inherently concerned with social justice. Since justice is based on subjective moral values, Kelsen argues that the law is neutral and only requires that norms are valid and followed, regardless of whether they promote justice or not.

What critique is often raised against Kelsen's theory?

A common critique of Kelsen's theory is that it disconnects law from important moral considerations. Critics argue that laws, even when valid, can be unjust, and that a purely formalistic approach to law can lead to oppressive systems, as laws can be manipulated for illegitimate purposes.

How does Kelsen's theory impact the understanding of legal systems in practice?

Kelsen's theory provides a highly structured and technical approach to understanding legal systems. However, in practice, it may overlook the broader societal context and moral implications of laws. Legal practitioners and theorists often find it necessary to incorporate insights from other disciplines, such as ethics, sociology, and politics, to fully understand and apply law.

What does Kelsen mean by the legal system being 'unitary, organic, closed, and complete'?

Kelsen describes the legal system as unitary, meaning it operates as a single, cohesive system; organic, indicating that it evolves and functions together as a whole; closed, in the sense that it is self-contained and independent; and complete, implying that all necessary legal norms are part of the system.

What is the importance of Kelsen’s theory for legal studies?

Kelsen's theory is crucial in legal studies because it introduced a rigorous, systematic approach to understanding law, emphasizing the importance of the formal structure and validity of norms. While the theory has its limitations, it laid the groundwork for modern legal positivism and remains a foundational part of legal philosophy.