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Already in 1913, Kelsen had identified the need for a legal theoretic framework to support the idea of the Rechtsstaat. [5]Adolf Julius Merkl [de; pt] was a student of Kelsen's who made important contributions starting in 1918 in the area of hierarchy of norms that would help underpin some of Kelsen's ideas on norms and how they fit into his pure theory of law.
That is, "legal science" is to be separated from "legal politics". Central to the Pure Theory of Law is the notion of a ' basic norm ' ( Grundnorm )—a hypothetical norm, presupposed by the jurist, from which all "lower" norms in the hierarchy of a legal system , beginning with constitutional law , are understood to derive their authority or ...
In Kelsen's view, the validity of a legal norm derives from a higher norm, creating a hierarchy that ultimately rests on a "basic norm": this basic norm, not the sovereign, is the ultimate source of legal authority. In addition to Kelsen, other prominent legal positivists of the 20th century include H. L. A. Hart and Joseph Raz.
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior, [1] with its precise definition a matter of longstanding debate. [2] [3] [4] It has been variously described as a science [5] [6] and as the art of justice.
For Kelsen, this ambiguity in the definition of natural made it unusable in any practical sense for a modern approach to understanding the science of law. Kelsen explicitly defined positive law to deal with the many ambiguities he associated with the use of natural law in his time, along with the negative influence which it had upon the ...
[7] Kant's political teaching may be summarized in a phrase: republican government and international organization. In more characteristically Kantian terms, it is doctrine of the state based upon the law (Rechtsstaat) and of eternal peace. Indeed, in each of these formulations, both terms express the same idea: that of legal constitution or of ...
The ancient concept of rule of law can be distinguished from rule by law, according to political science professor Li Shuguang: "The difference ... is that, under the rule of law, the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law is a mere tool for a government, that suppresses in a legalistic ...
Natural rights were traditionally viewed as exclusively negative rights, [6] whereas human rights also comprise positive rights. [7] Even on a natural rights conception of human rights, the two terms may not be synonymous. The concept of natural rights is not universally accepted, partly due to its religious associations and perceived incoherence.