Lars Vinx

Kelsen argued that any legal system claims a monopoly of the legitimate use of coercive force. Where there is law, Kelsen held, uses of force are prohibited unless they are specifically authorized by the law. Christoph Kletzer's reconstruction of the Pure Theory of Law offers a more austere picture of the relation between law and coercive force. According to Kletzer, the law regulates the use of force simply by permitting it. To make good on this claim, Kletzer must show that it is possible to give a satisfactory description of the workings of legal order in terms of permissions of the use of force alone. This paper argues that an account of legal order as austere as this cannot be given. The permissive operations of the law Kletzer takes to be fundamental presuppose a prior prohibition of unlawful uses of coercion.

This volume provides the first English translation of Hans Kelsen's and Carl Schmitt's influential Weimar-era debate on constitutional guardianship and the legitimacy of constitutional review. It includes Kelsen's seminal piece, 'The Nature and Development of Constitutional Adjudication', as well as key extracts from the 'Guardian of the Constitution' which present Schmitt's argument against constitutional review. Also included are Kelsen's review of Schmitt's 'Guardian of the Constitution', as well as some further material by Kelsen and Schmitt on presidential dictatorship under Article 48 of the Weimar Constitution. These texts show Kelsen and Schmitt responding to one another, in the context of a debate focused on a concrete constitutional crisis, thus allowing the reader to assess the plausibility of Kelsen's and Schmitt's legal and constitutional theories.

This paper offers a novel interpretation of the theory of the personality of the state put forward in Hobbes’s Leviathan. Hobbes’s account of political representation does not conceive of the state as a “purely artificial person” or “person by fiction,” as Quentin Skinner and David Runciman have argued. Rather, Hobbes regards the state as an artificial person that is closely analogous to natural persons. The state’s integrity as well as the limits of its legitimate authority are based on normative constraints on impersonation that apply to a person’s self-representation as much as to political representation by sovereign authority. These constraints, it is argued here, result from what Hobbes considers to be the proper measure of individual self-esteem, a measure that eschews both inordinate pride and excessive humility.

Kelsen’s legal monism—the claim that it is impossible for legal science to recognize the existence of more than one legal system—is often held to be one of the least plausible aspects of Kelsen’s pure theory of law. This paper challenges the criticism of Kelsen’s monism in the work of H.L.A. Hart. In particular, it will argue that Hart failed to show that Kelsen’s monism rests on a mistaken criterion of the identity of legal system and that it is, therefore, descriptively inadequate. Kelsen’s monism is not only descriptively viable but potentially able to provide an interesting counterpoint to the prevalent legal pluralist orthodoxy in the theory of legal system.

Hans Kelsen's critique of John Austin has so far attracted little attention among legal theorists. This article argues that Kelsen's attack on Austin anticipated the key elements of Hart's rejection of the Austinian conception of law as sanction-backed sovereign command. At the same time, the way in which Kelsen presents his critique of Austin's conception of sovereignty reveals important differences in purpose and intention between Kelsen's Pure Theory of Law and Hart's legal theory. The Pure Theory of Law is animated by an ideal of legality that is alien to purely descriptive jurisprudential approaches in the Hartian tradition.The article concludes that this difference between Kelsen and Hart merits further exploration and that it might help to show that the Pure Theory of Law is still relevant to contemporary legal theory

Neo-republicans claim that Hobbes’s constitutional indifferentism (the view that we have no profound reason to prefer one constitutional form over another) is driven exclusively by a reductive understanding of liberty as non-interference. This essay argues that constitutional indifferentism is grounded in an analysis of the institutional presuppositions of well-functioning government that does not depend on a conception of liberty as mere non-interference. Hence, indifferentism cannot be refuted simply by pointing out that non-domination is a distinctive ideal of freedom. This result does not suffice to defend the strong version of indifferentism put forward by Hobbes. But it does point to an important limitation of neo-republican constitutional theory: Neo-republicanism will amount to a distinctive paradigm of constitutional thought only if it is understood in a way that conflicts with Hobbes’s understanding of the institutional presuppositions of well-functioning government. It is doubtful that we have good reason to embrace neo-republicanism, so understood.