Paul Gragl

This paper discusses the main criticism launched against legal monism and the Pure Theory of Law, as envisaged by Hans Kelsen and the other proponents of the Vienna School of Jurisprudence, namely the criticism voiced by two of the most eminent legal theorists, HLA Hart and Joseph Raz. According to them, legal monism fails to offer a satisfactory theory of the identity of legal systems and it therefore simply cannot be considered a viable theory of legal systems, because it leads to obviously absurd consequences. These arguments which take the form of an attack on the most basic tenets of the Pure Theory of Law and thus legal monism, will be duly addressed and consequently rebutted in this paper, particularly in order to be able to maintain legal monism in its juridico-epistemological manifestation as a working and viable theory of the law.

Hans Kelsen is best known as one of the twentieth century’s leading legal theorists, advocating legal positivism by strictly separating the law from morality and other nonlegal elements. Despite the absence of a systematic and comprehensive moral theory in his writings, this paper presents and analyzes his scattered remarks on morality in metaethical terms, which should allow modern metaethics to better place his position on the broad map of metaethical theory. To this end, I will first describe Kelsen’s distinction between law and morality and then go beyond it by first discussing whether Kelsen can be regarded as a moral cognitivist or non-cognitivist, and subsequently by presenting a modest defence of his position in terms of democracy theory as well as a modern reinterpretation in the light of moral constructivism.

In response to a climate in which respect for international law and the law of the European Union is rapidly losing ground, Paul Gragl advocates for the revival of legal monism as a solution to potentially irresolvable normative conflicts between different bodies of law. In this first comprehensive monograph on the theory as envisaged by the Pure Theory of Law of the Vienna School of Jurisprudence, the author defends legal monism against the competing theories of dualism and pluralism. Drawing on philosophical, epistemological, legal, moral, and political arguments, this book argues that only monism under the primacy of international law takes the law and the concept of legal validity seriously. On a practical level, it offers policy-makers and decision-makers methods of dealing with current problems and a means to restore respect for international law and peaceful international relations. While having the potential to revive and elicit further interest and research in monism and the Pure Theory of Law, the comprehensiveness and scope of the book also make it a choice text for inter-disciplinary scholars.