Teoria Pura do Direito de Kelsen

Summary

This lecture delves into Hans Kelsen's *Pure Theory of Law*, exploring its foundations in legal positivism and the separation of law from moral or cultural influences. Kelsen argues that law should be studied as a distinct, scientific discipline with its own methods, free from the 'impurities' of philosophical, sociological, or theological biases. The focus is on the concepts of 'fact' and 'norm', where law is seen as a hierarchical system of norms, with higher norms validating lower ones. The lecturer also contrasts Kelsen’s ideas with natural law theories, encouraging students to explore the 'purity' of legal analysis.

Takeaways

• 😀 Kelsen's 'Pure Theory of Law' emphasizes law as a science, independent of external disciplines like philosophy, sociology, and theology.
• 😀 The theory of law focuses on law's neutrality, seeking to eliminate subjective biases or cultural values from legal analysis.
• 😀 Kelsen distinguishes between positivism and natural law, rejecting the idea of universal, inalienable rights in favor of human-made, state-enforced laws.
• 😀 Kelsen’s method aims to depurify legal study by removing extraneous elements such as historical, moral, and religious values from the legal process.
• 😀 In the 'Pure Theory of Law,' law is studied in its own right, through a scientific method focused on norms and facts, without external moral judgments.
• 😀 The 'fact' (fato) refers to real-world events that serve as material sources for legal analysis, while the 'norm' (norma) refers to the legal rules or prescriptions.
• 😀 Kelsen introduces a two-category framework: 'the fact' (what is) and 'the norm' (what should be), representing the material and formal sources of law.
• 😀 Kelsen's hierarchy of norms places constitutions at the top, followed by laws, regulations, and other legal instruments in a descending order of authority.
• 😀 The 'hypothetical fundamental norm' is the highest norm in Kelsen's legal system, validating the legal order itself and forming the basis for all other norms.
• 😀 The lecture also compares Kelsen's theory to Kant’s moral philosophy, noting the similarities in their formal structures of foundational norms that give legitimacy to a system.

Q & A

What is Hans Kelsen's *Pure Theory of Law*?

Kelsen's *Pure Theory of Law* posits that law should be studied as a scientific system, separate from philosophical, theological, and sociological influences. It focuses on law as a set of norms, and seeks to eliminate any external values or assumptions in its analysis.

How does Kelsen's theory differ from natural law theories?

Kelsen's theory differs from natural law in that it rejects the idea of universal, inalienable rights based on moral or divine principles. Instead, Kelsen emphasizes the positivist view of law as a human-made system of norms, free from external values.

What does Kelsen mean by 'purity' in his theory?

In Kelsen's theory, 'purity' refers to the idea that law should be studied independently from non-legal disciplines such as philosophy, sociology, or theology. The aim is to eliminate any external biases, values, or assumptions, making legal analysis neutral and focused solely on legal norms.

What is the role of 'norms' in Kelsen's theory of law?

Norms are the foundational building blocks in Kelsen's theory. Legal norms are viewed as commands that govern behavior, and they are structured hierarchically in a system, where higher norms (like constitutions) validate the lower ones (like regulations or court rulings).

What is the 'normative pyramid' in Kelsen's theory?

The 'normative pyramid' is a metaphor used by Kelsen to describe the hierarchical structure of legal norms. At the top are the highest norms (e.g., constitutions), followed by laws created by legislatures, and at the bottom are lower norms like administrative regulations and judicial decisions.

Why does Kelsen believe law must be free of values?

Kelsen believes that law must be free of values to ensure that it remains a neutral, objective science. By eliminating values, the legal system can function without external influence, allowing for a purely legal analysis based on established norms and rules.

How does Kelsen's view of law compare to other legal theorists like Miguel Reale?

While Kelsen's theory focuses purely on norms and facts, Miguel Reale’s *tridimensional theory of law* incorporates a third dimension—values. Reale argues that values are intrinsic to legal norms and play a vital role in shaping the law, whereas Kelsen removes these external influences for a more systematic, neutral analysis.

What does Kelsen mean by the term 'impurities' in legal analysis?

Kelsen refers to 'impurities' as the external philosophical, sociological, and moral influences that can distort legal analysis. He argues that these should be removed to ensure that law is studied as a pure science, without subjective or cultural biases.

What is the significance of Kelsen's 'hypothetical norm'?

The 'hypothetical norm' is the fundamental norm that underlies all other norms in a legal system. It is a norm that cannot be questioned or derived from any other norm, and it provides the ultimate source of validity for the entire legal structure.

How does Kelsen's theory address the application of law in concrete cases?

Kelsen's theory allows for the application of law to concrete cases by relying on the hierarchical structure of norms. When no specific law applies to a case, judges may use analogy or customary law to resolve the issue, always ensuring that the solution adheres to the established legal norms.