Kelsen's Theory of Law-Application: Evolution, Ambiguities, Open Questions

Abstract

Surveying Kelsen’s main opuses — Hauptprobleme der Staatsrechtslehre (1911), Allgemeine Staatslehre (1925), as well as Reine Rechtslehre (1934) — theoretical developments involving changes and contradictions are treated in his oeuvre. Special interest is reserved to a consequential chain of issues in the series of a latent reformulation of his Pure Theory, such as the Theory of gradation, the Constitutive character of law-application as substantiated step by step in his work, including some key Theoretical question marks and featuring particular traits in his Theory of interpretation. All in all, law-application [Rechtsanwendung] will subsequently transform into the originality of a creation embodied by the judicial moment, from the initial stand looking at it as a mere logical conclusion. The reconstruction of the final message of his theoretical position ends in quite a Procedural outlook of law, with the perspective of Self-transcendence of his Pure Theory, while the final query of all legal theorising — Who watches the watchmen? — will remain unresolved within the boundaries of a normative theory.

Keywords: law-making/law-application, interpretation, legal force, decision-making

JEL Classification: K41