Textbook Kelsenian Legal Science and The Nature of Law 1St Edition Peter Langford Ebook All Chapter PDF

Kelsenian Legal Science and the Nature
of Law 1st Edition Peter Langford

Visit to download the full and correct content document:
https://textbookfull.com/product/kelsenian-legal-science-and-the-nature-of-law-1st-edi
tion-peter-langford/
More products digital (pdf, epub, mobi) instant
download maybe you interests ...
Law and the Russian State Russia s Legal Evolution from

Peter the Great to Vladimir Putin William Pomeranz
https://textbookfull.com/product/law-and-the-russian-state-
russia-s-legal-evolution-from-peter-the-great-to-vladimir-putin-
william-pomeranz/
The Nature of International Law Gerry Simpson
https://textbookfull.com/product/the-nature-of-international-law-
gerry-simpson/
Coercion and the Nature of Law First Edition Kenneth

Einar Himma
https://textbookfull.com/product/coercion-and-the-nature-of-law-
first-edition-kenneth-einar-himma/
Essentials of Business Law and the Legal Environment

Richard A. Mann
https://textbookfull.com/product/essentials-of-business-law-and-
the-legal-environment-richard-a-mann/
Vagueness in the Law: Philosophical and Legal
Perspectives 1st Edition Geert Keil
https://textbookfull.com/product/vagueness-in-the-law-
philosophical-and-legal-perspectives-1st-edition-geert-keil/
The hidden history of international law in the Americas

: empire and legal networks 1st Edition Scarfi
https://textbookfull.com/product/the-hidden-history-of-
international-law-in-the-americas-empire-and-legal-networks-1st-
edition-scarfi/
Netherlands Yearbook of International Law 2016 The

Changing Nature of Territoriality in International Law
1st Edition Martin Kuijer
https://textbookfull.com/product/netherlands-yearbook-of-
international-law-2016-the-changing-nature-of-territoriality-in-
international-law-1st-edition-martin-kuijer/
Business Law and the Legal Environment, Standard

Edition Jeffrey F. Beatty
https://textbookfull.com/product/business-law-and-the-legal-
environment-standard-edition-jeffrey-f-beatty/
Islamic legal revival : reception of European law and

transformations in Islamic legal thought in Egypt,
1875-1952 1st Edition Wood
https://textbookfull.com/product/islamic-legal-revival-reception-
of-european-law-and-transformations-in-islamic-legal-thought-in-
egypt-1875-1952-1st-edition-wood/
Law and Philosophy Library 118
Peter Langford
Ian Bryan
John McGarry Editors
Kelsenian
Legal Science
and the
Nature of Law
Law and Philosophy Library
Volume 118
Series editors
Francisco J. Laporta, Autonomous University of Madrid, Spain
Frederick Schauer, University of Virginia, USA
Torben Spaak, Stockholm University, Sweden
Editorial Board
Aulis Aarnio, Secretary General of the Tampere Club, Finland
Humberto Ávila, University of São Paulo, Brazil
Zenon Bankowski, University of Edinburgh, UK
Paolo Comanducci, University of Genoa, Italy
Hugh Corder, University of Cape Town, South Africa
David Dyzenhaus, University of Toronto, Canada
Ernesto Garzón Valdés, Johannes Gutenberg Universitat, Germany
Riccaro Guastini, University of Genoa, Italy
Ho Hock Lai, National University of Singapore, Singapore
John Kleinig, City University of New York, USA
Claudio Michelon, University of Edinburgh, UK
Patricia Mindus, Uppsala University, Sweden
Yasutomo Morigiwa, Meiji University, Japan
Giovanni Battista Ratti, University of Genova, Italy; University of Girona, Spain
Wojchiech Sadurski, University of Sydney, Australia
Horacio Spector, University of San Diego, USA; Universidad Torcuato Di Tella,
Argentina
Robert S. Summers, Cornell University, USA
Michel Troper, Université de Paris Quest - Nanterre, France
Carl Wellman, Washington University, USA
The Law and Philosophy Library, which has been in existence since 1985, aims to
publish cutting edge works in the philosophy of law, and has a special history of
publishing books that focus on legal reasoning and argumentation, including those
that may involve somewhat formal methodologies. The series has published
numerous important books on law and logic, law and artificial intelligence, law and
language, and law and rhetoric. While continuing to stress these areas, the series has
more recently expanded to include books on the intersection between law and
the Continental philosophical tradition, consistent with the traditional openness of
the series to books in the Continental jurisprudential tradition. The series is proud of
the geographic diversity of its authors, and many have come from Latin America,
Spain, Italy, the Netherlands, Germany, and Eastern Europe, as well, more obviously
for an English-language series, from the United Kingdom, the United States,
Australia, and Canada.
More information about this series at http://www.springer.com/series/6210

Peter Langford • Ian Bryan • John McGarry
Editors
Kelsenian Legal Science

and the Nature of Law
Editors
Peter Langford Ian Bryan
Department of Law and Criminology Lancaster University Law School
Edge Hill University Lancaster University
Ormskirk, UK Lancaster, UK
John McGarry
Department of Law and Criminology
Edge Hill University
Ormskirk, UK
ISSN 1572-4395 ISSN 2215-0315 (electronic)

Law and Philosophy Library
ISBN 978-3-319-51816-9 ISBN 978-3-319-51817-6 (eBook)
DOI 10.1007/978-3-319-51817-6
Library of Congress Control Number: 2017932650
© Springer International Publishing AG 2017

This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of
the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation,
broadcasting, reproduction on microfilms or in any other physical way, and transmission or information
storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology
now known or hereafter developed.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication
does not imply, even in the absence of a specific statement, that such names are exempt from the relevant
protective laws and regulations and therefore free for general use.
The publisher, the authors and the editors are safe to assume that the advice and information in this book
are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the
editors give a warranty, express or implied, with respect to the material contained herein or for any errors
or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims
in published maps and institutional affiliations.
Printed on acid-free paper
This Springer imprint is published by Springer Nature

The registered company is Springer International Publishing AG
The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
Acknowledgements
We are indebted to Neil Olivier, Diana Nijenhuijzen, Christi Jongepier-Lue and

their colleagues in the editorial team at Springer, for their assistance, support and
patience regarding the preparation and submission of the manuscript. We would
also like to express our gratitude to the contributors to this volume both for their
support for our project and for their discerning, stimulating and innovative contribu-
tions. We would like, furthermore, to thank the Austrian Cultural Forum, the cul-
tural arm of the Austrian Embassy in London, and Edge Hill University, for the
financial support which enabled the ‘Hans Kelsen and the Natural Law Tradition:
An International, Interdisciplinary Conference’ to take place. Many of the chapters
in this volume are developed from papers first presented at the Conference, hosted
at Edge Hill University, UK, in September 2013.
In addition to the aforementioned, Peter would like to acknowledge and thank all
his friends for their interest and encouragement and to thank his father for his sup-
port throughout this book project. Ian would like to express his profound gratitude
to family and friends for their insightful comments, cordial forbearance and unfail-
ing kindness. John would like to thank his family, Clare, Joe, Joan and Ken for their
support and patience.
May 2016 Peter Langford

Ian Bryan
John McGarry
v
Contents
1 Introduction: Kelsen, Legal Science and Positive Law�� 1

Peter Langford, Ian Bryan, and John McGarry
Part I Legal Science Before the Tribunal of Validity

2 Kelsen and the Problems of the Social Fact Thesis �� 23
Lorenz Kähler
3 Natural Law and the Nature of Law: Kelsen’s Paradox�� 43
Pierre-Yves Quiviger
Part II Beyond Natural Law?

4 Natural Law Systematics: Is There a ‘Grundnorm’
in Natural Law? �� 57
Claes Peterson
Part III Kelsen’s Constitutionalism

5 Kelsen and Contemporary Constitutionalism:
The Continued Presence of Kelsenian Themes�� 75
Paolo Carrozza
6 Constitutionalism and Value-Free Method: Kelsen’s Legacy
in Contemporary Challenges�� 99
Valeria Giordano
Part IV Against Practical Reason

7 Hans Kelsen and Practical Reason �� 121
Francesco Viola
vii
viii Contents
8 Kelsen and Legal Interpretation�� 141

Isabel Lifante Vidal
9 Validity and Correctness in Kelsen’s Theory
of Legal Interpretation�� 153
José Manuel Cabra Apalategui
Part V Legal Science and Human Rights

10 Hans Kelsen’s Works and the Modern Theories
of Human Rights�� 173
Véronique Champeil-Desplats
11 Kelsen on Democracy in Light of Contemporary
Theories of Human Rights�� 193
Christine Chwaszcza
12 Individual Sovereignty: From Kelsen to the Increase
in the Sources of the Law�� 213
Francescomaria Tedesco
Part VI The Triumph of Legal Science?

13 Kelsen and the Necessity of God in the Natural-Law Doctrine �� 241
John McGarry
14 Kelsen on Natural Law and Legal Science�� 257
Jan Sieckmann
15 Kelsen and Natural Law Theory: An Enduring Critical Affair�� 275
Pierluigi Chiassoni
16 Conclusion: Positive Law and the Kelsenian Project �� 303
Contributors
Ian Bryan Lancaster University Law School, Lancaster University, Lancaster, UK

José Manuel Cabra Apalategui University of Málaga, Málaga, Spain
Paolo Carrozza Institute of Law, Politics and Development, Sant’Anna School of
Advanced Studies, Pisa, Italy
Véronique Champeil-Desplats Paris Ouest-Nanterre-La Défense University,
Paris, France
Pierluigi Chiassoni Department of Law, University of Genoa, Genoa, Italy
Christine Chwaszcza Department of Philosophy, University of Cologne, Cologne,
Germany
Valeria Giordano Department of Legal Science, University of Salerno, Salerno,
Italy
Lorenz Kähler Faculty of Law, University of Bremen, Bremen, Germany
Peter Langford Department of Law and Criminology, Edge Hill University,
Ormskirk, UK
Isabel Lifante Vidal Faculty of Law, Department of Philosophy of Law and
Private International Law, University of Alicante, Alicante, Spain
John McGarry Department of Law and Criminology, Edge Hill University,
Ormskirk, UK
Claes Peterson Department of Law, University of Stockholm, Stockholm, Sweden
Pierre-Yves Quiviger Department of Philosophy, University of Nice Sophia-
Antipolis – University of Côte d’Azur, Nice, France
ix
x Contributors
Jan Sieckmann Faculty of Business, Economics, and Law, University of

Erlangen-Nuremberg, Erlangen, Germany
Francescomaria Tedesco School of Law, University of Camerino, Camerino,
Italy
Francesco Viola Department of Law, University of Palermo, Palermo, Italy
Author Information
José Manuel Cabra Apalategui is senior lecturer in the Department of Financial

Law, Political Economy and Philosophy of Law, University of Málaga, Spain. He
has been visiting researcher at the universities of Mainz, Munich and Geneva. He
has also been visiting scholar at the Centre for Law and Cosmopolitan Values at the
University of Antwerp. His significant body of work is in the areas of theory of law,
theories of legal argumentation and Hayek’s political liberalism. Included in his
publications are Sobre Derecho Y Argumentacion: Estudios De Teoria De La
Argumentacion Juridica (Granada: Comares, 2016) and Argumentación jurídica y
racionalidad en A. Aarnio (Madrid: Dickinson, 2000).
Ian Bryan is senior lecturer in law, School of Law, Lancaster University, UK. His
teaching, research and publication activities traverse a wide range of fields, includ-
ing the administration of criminal justice, criminal law, the laws of evidence, legal
history, human rights and legal theory. He is author of Interrogation and Confession:
A Study of Progress, Process and Practice (Dartmouth,1997). He is also (along with
P. Langford and J. McGarry) coeditor of The Foundation of the Juridico-Political:
Concept Formation in Hans Kelsen and Max Weber (Routledge 2015) and The
Reconstruction of the Juridico-Political: Affinity and Divergence in Hans Kelsen
and Max Weber (Routledge 2015).
Paolo Carrozza is professor of constitutional law at the Scuola Superiore

Sant’Anna, Pisa, Italy. Previously professor of public law at the universities of
Florence and Sassari, his most notable books include Diritto costituzionale com-
parato (with A. Di Giovine and G.F. Ferrari; Laterza, 2014) and Diritto di welfare
(with M. Campedelli and L. Pepino; Il Mulino, 2010).
Véronique Champeil-Desplats is professor in public law at the University of Paris

Ouest-Nanterre-la-Défense; director of the Centre de Recherche et d’Etude sur les
droits fondamentaux (CREDOF) at Paris Ouest-Nanterre-La Défense University;
and director of the Revue des droits de l’Homme. Her research centres on constitu-
tionalism, human rights, legal theory and political theory. She is author of Norberto
xi
xii Author Information
Bobbio: pourquoi la démocratie? (Houdiard Editeur, 2008) and Méthodologies du

droit et des sciences du droit (Dalloz, 2014). She has also translated Riccardo
Guastini’s Leçons de théorie constitutionnelle (Dalloz, collection Rivages du droit,
2010). She is editor of Pédagogie et droits de l’homme (Presses Universitaires de
Paris Ouest, 2014) and coeditor of Liberté économique et droits de l’homme (Presses
Universitaires de Paris Ouest, 2010).
Pierluigi Chiassoni is professor of jurisprudence at the Department of Law, the

University of Genoa, Italy. Amongst his recent publications are El discreto placer
del positivismo jurídico (Bogotá, 2016), Da Bentham a Kelsen. Sei capitoli per una
storia della filosofia analitica del diritto (Torino, 2016), Desencantos para aboga-
dos realistas (Bogotá, 2013), El análisis económico del derecho en los Estados
Unidos (Lima, 2013), Il positivismo giuridico. Una investigazione analitica
(Modena, 2013) and Técnicas de interpretación jurídica (Madrid-Barcelona-Buenos
Aires, 2011). He is also president of the master’s programme ‘Global Rule of Law
and Constitutional Democracy’.
Christine Chwaszcza is professor of social and political philosophy at Cologne

University, Germany. Previously she was professor of social and political philoso-
phy at the European University Institute, San Domenico, Italy. Amongst her research
and teaching interests are philosophy of human rights and ethics in international
relations. Her publications include Moral Responsibility and Global Justice: A
Human Rights Approach (2nd revised edition, Baden-Baden: Nomos Verlag, 2010).
Valeria Giordano is associate professor in the Department of Legal Science,

University of Salerno, Italy. Her research centres upon the areas of constitutional-
ism and positivism, legal method, fundamental rights, democracy and globalization.
In addition to numerous articles and books chapters, her books include (as coeditor)
Razionalità del diritto e poteri emergenti (Giappichelli, 2013), (as coeditor)
Effettività e modelli normativi. Studi di Filosodia del diritto (Giappichelli, 2013),
Modelli argomentativi delle teorie giuridiche contemporanee (Edizioni Scientifiche
Italiane, 2008) and Il positivismo e la sfida dei principi (Edizioni Scientifiche
Italiane, 2004). She is also the editor of the journal Soft Power: Euro-American
Journal of Historical and Theoretical Studies of Politics.
Lorenz Kähler is professor of civil law, civil procedure and legal theory at the
University of Bremen, Germany. Along with his many journal contributions are his
monographs Begriff und Rechtfertigung abdingbaren Rechts (Tübingen: Mohr
Siebeck, 2012) and Strukturen und Methoden der Rechtsprechungsänderung, 2.
Aufl. (Baden-Baden: Nomos, 2011).
Peter Langford is senior lecturer in law, Department of Law and Criminology,

Edge Hill University, UK. He has published in the areas of human rights and legal
theory. He is (along with I. Bryan and J. McGarry) coeditor of The Foundation of
the Juridico-Political: Concept Formation in Hans Kelsen and Max Weber
Author Information xiii
(Routledge 2015) and The Reconstruction of the Juridico-Political: Affinity and

Divergence in Hans Kelsen and Max Weber (Routledge 2015). He has also pub-
lished a book on the work of the contemporary Italian philosopher Roberto Esposito:
Roberto Esposito: Law, Community and the Political (London: Routledge, 2015).
Isabel Lifante Vidal is senior lecturer in legal philosophy at the University of

Alicante, Spain. Amongst her most notable publications are the monograph La
interpretación jurídica en la teoría del Derecho contemporánea (CEPC, 1999) and
such articles as ‘Dos conceptos de discrecionalidad jurídica’, ‘Sobre el concepto de
representación’ and ‘Seguridad jurídica y previsibilidad’ (all published in Doxa).
She is member of the editorial board of Doxa and deputy director of the Observatorio
de Argumentación Jurídica para el Mundo Latino.
John McGarry is reader in law, Department of Law and Criminology, Edge Hill
University. He has published in the areas of public law and jurisprudence. He is
(along with I. Bryan and P. Langford) coeditor of The Foundation of the Juridico-
Political: Concept Formation in Hans Kelsen and Max Weber (Routledge 2015) and
The Reconstruction of the Juridico-Political: Affinity and Divergence in Hans
Kelsen and Max Weber (Routledge 2015). He is also the author of Intention,
Supremacy and the Theories of Judicial Review (Routledge 2016).
Claes Peterson is professor of legal history in the Department of Law, Stockholm

University, Sweden. He published his doctoral thesis, ‘Peter the Great’s
Administrative and Judicial Reforms: Swedish Antecedents and the Process of
Reception’, in 1979. He has also contributed to such publications as Poltava: Sud’by
plennych i vzajmodejstvie kul’tur (T. Torstendahl-Salytjeva i Lena Jonsson (ed.);
RGU, 2009), Rechtswissenschaft als juristische Doktrin: ein rechtshistorisches
Seminar in Stockholm, 29 bis 30 Mai 2009 (Stockholm, 2009), Juridiska fakulteten
1907–2007: En minnesskrift, Juridiska fakulteten (Stockholm, 2007), History and
European Private Law: Development of Common Methods and Principles (Lund,
1997) and Juristische Theoriebildung und rechtliche Einheit: Beiträge zu einem
rechtshistorischen Seminar in Stockholm in September 1992 (Lund, 1993). His cur-
rent research concerns different aspects of the history and development of legal
methodology and jurisprudence.
Pierre-Yves Quiviger is professor of philosophy at the University of Nice Sophia

Antipolis, director of the Centre de Recherches en Histoire des Idées (CRHI) and a
specialist in legal theory. He has published several articles on contemporary forms
of natural law and has edited a number of Sieyès works, including Le secret du droit
naturel (Classiques Garnier, 2013). He, together with Pierre Ferrand, will publish
the first French translation of Calvin’s commentary on Seneca’s De Clementia
(1532) (Classiques Garnier, 2016).
Jan Sieckmann is professor of legal theory and philosophy of law at the University
of Erlangen-Nürnberg, Germany. Previously, he was professor of public law at the
xiv Author Information
University of Bamberg and the University of Erlangen-Nürnberg and DAAD visit-

ing professor at the University of Buenos Aires. Amongst his numerous publications
are The Logic of Autonomy: Law, Morality and Autonomous Reasoning (Hart
Publishing, 2012), (as editor) Die Prinzipientheorie der Grundrechte: Studien zur
Grundrechtstheorie Robert Alexys (Nomos, 2007) and Argumentation und poli-
tische Legitimation (Baden-Baden: Nomos, 2006) and Verfassung und Argumentation
(Nomos, 2005).
Francescomaria Tedesco is research fellow in philosophy of law at the University

of Camerino, Italy. From 2010 to 2015, he was research fellow in political philoso-
phy at the Scuola Superiore Sant’Anna, Pisa, Italy. He previously held positions, as
professor of human rights, at the Università per Stranieri, Perugia, Italy, and at the
Suor Orsola Benincasa University of Naples, Italy. His fields of interest are in politi-
cal philosophy, philosophy of law, anthropology, human rights, subaltern studies,
constitutional law and international law. His research has centred upon questions of
sovereignty, neo-liberalism, human rights and postcolonialism. His books include
Eccedenza sovrana (Milan-Udine: Mimesis, 2012), Diritti umani e relativismo
(Roma-Bari: Laterza, 2009) and Introduzione a Hayek (Laterza, Roma-Bari:
Laterza, 2004).
Francesco Viola is emeritus professor of legal philosophy in the Faculty of Law,

University of Palermo, Italy. He has a long experience of teaching and writing in
legal philosophy, legal theory, human rights and legal ethics. He is coeditor of a
series on legal philosophy and codirector of Ragion pratica, a journal on practical
philosophy, and of Ars Interpretandi, a journal on legal hermeneutics. He also
served as director of the ‘Law and Politics’ section in the recent edition of the
Encyclopedia of Philosophy (Bompiani) and is president of the Italian Association
for Legal Philosophy and editor-in-chief of the Journal of Legal Philosophy.
Chapter 1
Introduction: Kelsen, Legal Science
and Positive Law
Kelsenian legal science is a distinctive theoretical project for the comprehension of

positive law.1 It distinguishes itself from the broader, nineteenth century German
tradition of legal science through a process of critical interpretation and reworking.
The process, initiated with Kelsen’s habilitation of 1911, Hauptprobleme der
Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatze (Kelsen 2008), repre-
sents a reconsideration of the fundamental elements of this tradition which pre-
serves the methodological requirement for a theory of law to be a science. The
adoption of this interpretative position entails that the Kelsenian project assumes
both the continued pertinence of a notion of legal science and the historical legiti-
macy of the tradition of legal science in relation to preceding conceptions of a the-
ory of law. The tradition of legal science is held, in the 1911 habilitation, to denote
the origin from which further work on a theory of law is to develop.
The German tradition of legal science, which emerged and developed in opposi-
tion to the earlier nineteenth century legal theory of Friedrich Savigny (1779–1861),2
retains and reinforces Savigny’s distance from the theory of law in the preceding
1
We use the term ‘Kelsenian Legal Science’ to refer to the distinctive theoretical framework
through which Hans Kelsen (1881–1973) articulated his conceptualization positive law. The sub-
sequent modifications and alterations of this original framework are held to represent Kelsen’s
reflection upon the continued pertinence of the project of a legal science of positive law.
2
On Savigny, see (Hölzl 2002; Meder 2004; Lahusen 2012; and Rückert 2016).
P. Langford (*) • J. McGarry
Department of Law and Criminology, Edge Hill University, Ormskirk, UK
e-mail: langforp@edgehill.ac.uk; mcgarryj@edgehill.ac.uk
I. Bryan
Lancaster University Law School, Lancaster University, Lancaster, UK
e-mail: i.bryan@lancaster.ac.uk
© Springer International Publishing AG 2017 1

P. Langford et al. (eds.), Kelsenian Legal Science and the Nature of Law, Law
and Philosophy Library 118, DOI 10.1007/978-3-319-51817-6_1
2 P. Langford et al.
tradition of German idealism of Immanuel Kant, Johann Fichte and Georg Hegel
(Jouanjan 2003, 2005).3 The insistence of legal science upon an autonomous domain
of law which is to be grasped with distinct legal concepts, relinquishes Savigny’s
orientation to the interpretation of Roman law and its interpenetration with custom
(Sitte) and the spirit of the people (Volksgeist).4 The elaboration of a legal science of
public law, as a juridical theory of the state (Staatsrechtslehre), is the aspect of the
German tradition of legal science from which the Hauptprobleme commences its
critical analysis. The particular focus of the critical analysis is upon the work of
Paul Laband (1838–1918)5 and Georg Jellinek (1851–1911)6; and the Kelsenian
critique is orientated by the limitations of their different theoretical presentations of
a juridical theory of the state. The limitations arise from Kelsen’s insistence that a
juridical theory of the state, in order to be methodologically coherent, requires that
the notion of the state is an entirely legal concept (see, for example, Kelsen 2006a).
The autonomy of the domain of legal science, for Kelsen, rests upon a further juridi-
fication of the conceptual frameworks propounded by Laband and Jellinek in order
to exclude the non-juridical presence of the state. This presence is reflected in the
ascription of a will or subjectivity to the state which precedes the law and in the dual
character of the state which, for Laband and Jellinek, is both legal and factual. It is
from this critique that the initial elements of, and impetus for, the Kelsenian project
of a legal science of positive law are developed.7
The further development of the Kelsenian project, culminating in a pure theory
of law, presented in the Reine Rechtslehre of 1934 (Kelsen 2002), involves the
reworking and modification of the basic theoretical framework of the Hauptprobleme.
This is accompanied, at the theoretical level, by a critical engagement with the
emergence of another challenge to the German tradition of legal science, in the form
of a nascent sociology of law, and with the re-emergence, after World War I, of natu-
ral law theories.8 In relation to both theoretical frameworks, Kelsen asserts the
methodological superiority of a legal science of positive law. For Kelsen’s critical
engagement indicates their incapacity to provide a coherent theory of law which
establishes the specific normative character of positive law. The incapacity is the
corollary of a regression to either a merely factual conception of the normativity of
3
The distance is most evident in the dispute between Hegel and Savigny. See, for example,
Schiavone 1984; Hasse 2005; Kletzer 2007.
4
For Jouanjan, the point of transition between the two forms of legal theory is represented by the
work of Carl Friedrich Gerber (1823–1891). See Jouanjan 1997.
5
In particular, Laband’s three-volume, Das Staatsrecht des Deutschen Reichs (1876–1882).
6
See G Jellinek, Allgemeine Staatslehre, 2nd edition, 1905.
7
On this, see (Paulson 1996; Schönberger 2010). For Kelsen’s own reflections, in 1923, as pre-
sented in the Foreword to the second printing of the Hauptprobleme, see also (Kelsen 1997).
8
Kelsen’s critical engagement with a sociology of law, commences with the 1912 review of
Kantorowicz’s Rechtswissenschaft und Soziologie (Kelsen 1992), proceeds to the extended
exchange (1915–1917) with Eugen Ehrlich (Kelsen and Ehrlich 2003), and, finally, to the work of
Weber (Kelsen 1922, 1929a, b). For a broader discussion of Kelsen and Weber, see the contribu-
tions in Bryan et al. (2015a and 2015b). The engagement with natural law begins in the 1920s
(Kelsen 1973a, 2006a). There is a further phase of engagement in the late 1940s to the 1960s
(Kelsen 1949, 1956, 1959a, b, c, 1960b, 1973b).
1 Introduction: Kelsen, Legal Science and Positive Law 3
law (sociology of law) or a metaphysical conception of the normativity of law (natu-

ral law).
The methodological dispute is undertaken in a period of dramatic political
change in which the political and institutional context of the Hauptprobleme – the
existence of Wilhelmine Germany and Hapsburg Austria – has been transformed by
the emergence of the constitutional republics of Weimar Germany and the Austrian
First Republic and by the creation of the League of Nations. The juridical theory of
the state which the Hauptprobleme had re-elaborated is substantially modified by
the consideration of the juridical form of the republican constitution, theories of
democracy and the relationship between domestic law and international law. The
Kelsenian project seeks to extend a legal science of positive law to encompass these
developments (see, for example, Kelsen 1920, 1923a, b, 1924, 1925a, b, 1926,
1927, 1928, 1929a, b, 1932).
The Pure Theory of Law (Reine Rechtslehre) of 1934 (Kelsen 2002) represents a
summation of these developments of the 1920s and early 1930s. The summation is
structured by a systematic articulation of the methodological framework of a legal
science of positive law. The essential conceptual and terminological elements of the
Kelsenian project are formulated as a pure theory of law which provides a general
theory of positive law. The methodological position is one of detached reflection
upon law in order to determine the formal or logical characteristics of positive law.
The question of the nature of law becomes the question of positive law as an
entirely human creation which is open to continual change. The initial methodologi-
cal position rests on the insistence of on the inapplicability of the natural sciences to
the comprehension of positive law. The domain of positive law is irreducible to the
object of the natural sciences – the domain of nature – since a legal system com-
prised of legal norms is entirely distinct from the relations of cause and effect,
which in the natural sciences are considered to determine the domain of nature. The
distinctiveness of the domain of positive law rests on the connection which the legal
norm creates between legal condition and legal consequence. In contrast to the
domain of nature, in which a material consequence can be immediately connected
to a preceding material condition,9 the connection in the domain of positive law
requires the methodological operation of imputation. This involves the reconstruc-
tion of the legal norm and, by extension positive laws, as “[p]ositive laws say: ‘If A
is, then B ought to be’” (Kelsen 2002, 24). The reconstruction excludes the legal
norm from both natural causality and moral obligation, and creates a distinct realm
of the ‘ought’ (Sollen) as the object of a science of law. The methodological auton-
omy of a science of law is established as the basis for the further determination of
the conceptual framework of a pure theory of law.10
In this further determination, the methodology of the pure theory is “objectivistic
and universalistic” (Ibid. 53). It engages in a process which “seeks to comprehend
each and every phenomenon only in systematic connection with all other phenomena,
to comprehend in every legal component the function of the legal whole” (Ibid.).
9
“Laws of nature say: ‘If A is, then B must be’” (Kelsen 2002, 24).
10
In this further determination of its conceptual framework, the Reine Rechtlehre also reemphasizes
its critique of a sociology of law (Kelsen 2002, 13–14) and natural law (Ibid. 25; 35–36; 37–53).
The unity of this legal whole is the presupposition of its capacity to be compre-
hended systematically: the unity produced by an act of cognition. Hence, “all legal
problems are confronted and to be solved as systematic problems”, and the Kelsenian
project becomes “as exact a structural analysis of the positive law as possible, an
analysis free of all ethico-political value judgments” (Ibid.).
The structural analysis describes a hierarchical system of legal norms which is
both static and dynamic. The description is dependent upon a specific cognitive
operation – the presupposition of a basic norm – which is held to confer the requisite
methodological unity for the structural analysis. The notion of the basic norm, for
Kelsen, in conformity with the strictures of a structural analysis, is confined to the
cognitive clarification of positive law. This enables the pure theory of law to insist
upon its essentially heuristic role in which it relinquishes the intention to substitute
itself for an analysis of positive law and merely “raise[s] to the level of conscious-
ness what all jurists are doing (for the most part unwittingly)” (Ibid. 58). In this
heuristic operation, it situates itself as the description of the legal validity of a sys-
tem of positive law which is distinct from natural law or sociology of law.
The presupposition of the basic norm furnishes a notion of legal validity which
then leads to discussion of the levels of the state legal system, the place of interpre-
tation, methods of creating law, the relationship between law and state and the rela-
tionship between state and international law (Ibid. 59–125). In each of these
discussions, the emphasis is upon the combination of static and dynamic analysis
within the purview of the methodological project of a pure theory of law. The pure
theory considers the conceptual clarity of its analyses to be situated between a
reduction to merely empirical description and a return to metaphysics.
Kelsen’s subsequent work confronts the disappearance of the interwar interna-
tional order, World War II, the creation of the United Nations and the emergence of
a new international order and, from 1940, the academic context of the USA. The
predominant focus of Kelsen’s work between the later 1930s and 1940s is the
attempt to rearticulate a legal theory of international law which insists on the con-
tinued pertinence of a juridical form of collective security and the legal adjudication
of international disputes (Kelsen 1942, 1944). The position of methodological
detachment of the pure theory is challenged by the Kelsenian discussion of just war
theory (Kelsen 1942) and, together with the creation of the Nuremberg Tribunal
(Kelsen 1947), the question of the recognition of the individual as a subject of inter-
national law (Kelsen 1943, 1944, 1948). The Kelsenian project responds to these
questions by the continued insistence upon the primacy of positive law and its struc-
tural analysis.11 This is accompanied by the publication in 1949 of the General
Theory of Law and State (Kelsen 2006b) which represents the introduction of the
wider project of a Kelsenian legal science of positive law into the Anglo-American
11
The question of the periodization of Kelsen’s work is the subject of extended discussion in the
exchange between Heidemann and Paulson (Paulson 1998; Heideman 1999; and Paulson 1999).
See also Hartney (1991, xx–liii), who discusses the conceptual evolution of Kelsen’s work from
the Reine Rechtslehre (1934) to the General Theory of Norms (1979).
academic context.12 The further development of the Kelsenian position with regard
to the emerging post World War II international order is expressed in two books of
the early 1950s which represent a sustained critique of the law of the United Nations
(Kelsen 1951) and a statement of the principles of international law (Kelsen 1952).13
Here, the critical analysis of the law of the United Nations is the corollary of the
reaffirmation of the principles of a theory of international law. The distinct Kelsenian
position in relation to the new international order is reaffirmed, in 1957, in the insis-
tence that collective security is an essentially juridical question of international law
(Kelsen 2011).
The distinctive character of an analysis of positive law as a pure theory of law is
reaffirmed with a renewed critique of natural law commencing, in the late 1940s,
and continuing until the 1960s (Kelsen 1949, 1956, 1959a, 1960b, 1973b). The
initial position of the 1920s continues to be cited, but the Kelsenian critique now
involves a more extended examination of the historical doctrine of natural law and
of its contemporary proponents. The critique is the counterpart of an episodic
defence of the methodology of the pure theory of law (Kelsen 1941, 1959b, 1960a,
1966), which is combined with the publication of the second revised and expanded
edition of the Reine Rechtslehre (Kelsen 1967).
The final period of Kelsen’s work, from the late 1960s to 1973 is revealed, by the
posthumous publication of the unfinished General Theory of Norms (Kelsen 1991),
to indicate a significant alteration of the basic methodological framework for the
comprehension of positive law. The distinction between the realm of ‘is’ and ‘ought’
is retained together with the critique of natural law14 and practical reason in both
Kant and Aristotle. This continuity is, however, accompanied by a dissociation of a
theory of norms from the framework of a logical unity centred upon the basic norm.
The General Theory of Norms presents an increased complexity and uncertainty in
the relationship between legal norms and, thus, appears to relinquish the reconstruc-
tive task of a legal science of positive law predicated upon the presumption of the
objectivity and universality of a legal whole.15
In relation to the Kelsenian project of a legal science of positive law, the con-
tributors to this volume concentrate upon the critical re-examination which encom-
passes these stages of Kelsen work. The focus of the contributions is upon a number
of its central methodological presuppositions and concepts. The volume is divided
into six sections in which the critical examination is undertaken from the predomi-
nant perspective of the subsequent development of the theory of law outside or
beyond the framework of Kelsenian legal science. The return to the Kelsenian proj-
ect is accompanied by an extended, demanding analysis which is not predicated on
the simple restoration or reconstruction of a pure theory of law. Rather, while the
12
For a reconsideration of the American reception of the Kelsenian project, see Telman 2016.
13
Kelsen retired from his Professorial position at the University of California in 1952, but retained
a position as an emeritus Professor.
14
This critique is continued in the posthumously published Die Illusion der Gerechtigkeit: Ein
kritische Untersuchung der Sozialphilosophie Platons (Kelsen 1985).
15
On this, see Hartney 1993; Opałek 1980; Paulson 1992; and Weinberger 1981.
contributors acknowledge the continued pertinence and centrality of the question of

the nature of positive law underlying the Kelsenian project, each follows the logic
of their particular critical engagement.
1.1 Legal Science Before the Tribunal of Validity
The Kelsenian legal science of positive law, which sought to place the doctrine of
natural law before the tribunal of legal science (Kelsen 1949), has itself been subject
to the judgment of the later tradition of Anglo-American legal positivism. The judg-
ment, while comparatively less absolute and unalterable,16 has determined that a
legal theory of positive law is to be elaborated without the pretension to attain the
status of a science. The methodological construction of a legal science is replaced
by a theory of law developed from the philosophical tradition of Anglo-American
analytic philosophy.17 In this transition, the cognitive process of the demarcation of
a specific domain of law rejects the Kelsenian insistence upon its non-factual foun-
dation. The cognitive process becomes one of an empirical determination of law as
a social fact (real) in place of the Kelsenian presupposition of an autonomous notion
of legal validity which is inherently conceptual (ideal). The resulting ‘social fact
thesis’ is then the basis upon which to commence an alternative theory of positive
law.
The different theories of positive law (see, for example, Coleman 2001; Himma
2002, 2005; Marmor 2001; Raz 1980, 2009c) are, despite their significant diver-
gences, underlain by the social fact thesis as their common orientation. The pre-
sumed redundancy of the Kelsenian project is placed into question with the
examination of the nature of the social fact thesis.18 It becomes apparent that, rather
than one social fact thesis, the theories of positive law reveal a number of social fact
theses.19 In relation to this set of social fact theses, it also becomes evident that an
aspect of the Kelsenian project can be situated and analysed from within their
parameters.20 This, in turn, leads to an indication of the weakness of the central ele-
ments of the existing social fact theses and provides the impetus for a renewed
reflection upon the distinction between legal norms and facts.
In contrast to the predominant Anglo-American approach, a distinct mode of
critical examination of the Kelsenian project arises from a renewed focus upon the
notion of a science. From this position, a legal science of positive law is considered
16
See, for example, the discussion of Kelsen by Raz (2009a, b) and Marmor (2011).
17
The recourse to this philosophical tradition becomes increasingly explicit after the work of Hart.
18
See Kähler, (Chap. 2) in this volume.
19
This is the initial stage for Kähler’s critical analysis in Chap. 2 of this volume.
20
Tensions within various social fact theses and their relationship with Kelsenian legal science are
analysed by Kähler in Chap. 2 of this volume.
on the basis of its methodological claim to the status of a science.21 The examination
acknowledges the genesis of the methodology of a legal science in the context of the
German philosophical movement of Neo-Kantianism, in particular, Hermann Cohen
(1842–1918) and the early work of Ernst Cassirer (1874–1945), of the Marburg
School.22 In contrast to the path of a detailed analysis of the relationship between
this philosophical movement and the Kelsenian project, there is the alternative path
of recourse to the contemporaneous Austrian philosophical context, in particular,
that of the Vienna Circle (Wiener Kreis) of the early twentieth century. For the
Vienna Circle, the notion of a science is an integral part of a philosophy of logical
empiricism or logical positivism developed from the initial work of Ernst Mach
(1838–1916). The transposition of the methodology of a legal science into this phil-
osophical framework indicates a distinct set of potential affinities and critical ques-
tions (see Jabloner and Stadler 2001).
The shift represented by this alternative interpretative path enables the relation-
ship between a pure theory of law and its object – positive law – to be conceived on
the model of the physio-chemical sciences of nature.23 Here the notion of the pure
theory as a legal science is examined through the status of the pure theory’s con-
cepts of positive law in relation to the positive law from which they are derived. The
analysis centres upon the generation of a set of concepts of a pure theory of positive
law which replace a merely contingent, empirical observation of legal phenomena.
The concepts, which provide for the structural analysis of positive law, are held to
be essentially descriptive in character in order to accord continued primacy to the
object which they render intelligible. The question arises, however, of the extent to
which the description furnished by these concepts has an effect upon the object –
positive law – which it describes. The validity which the pure theory of law confers
upon the legal system of positive law is, thus, transformed from one of foundation
to one of its active or passive position in regard to the positive law which its con-
cepts describe.24
1.2 Beyond Natural Law?
The rejection and or critical interrogation of the Kelsenian project as a legal science
has derived its predominant impetus from Anglo-American analytic philosophy.
Within this approach, the focus has been almost exclusively confined to the contin-
ued elaboration of a theory of positive law which is strongly differentiated, if not
entirely separated, from morality and the natural law tradition. The question less
frequently posed to the Kelsenian project is that of its degree of methodological
21
The nature of law and the relationship between ‘science’ and the ‘science of law as pure theory’
are examined by Quiviger in Chap. 3 of this volume.
22
In particular, Cohen 1902; and Cassirer 1910.
23
This is Quiviger’s interpretative position in Chap. 3 of this volume.
24
As emphasized by Quiviger in Chap. 3 of this volume.
detachment from the natural law tradition (see, for example, Ross 1997).25 Here,
Kelsen’s emphatic and continually renewed insistence upon the separation – purifi-
cation – of a pure theory of law represents a symptom of an underlying difficulty
rather than the mere reaffirmation of demonstrable certainty. The symptom becomes
intelligible to critiques of the Kelsenian project as the reflection of the methodologi-
cally uncertain status of the basic norm (Grundnorm).
The consideration of the methodological coherence of the basic norm, as an
aspect of the wider coherence of Kelsenian legal science, has been a central concern
of those who have sought to trace the Neo-Kantian philosophical presence in
Kelsen’s work (Edel 1998; Holzhey 1984, 1986) and engage in its critique and
reconstruction (see the extensive body of work of Paulson, including, Paulson 2012,
2013, 2014). The orientation of this process of re-evaluation of the Neo-Kantian
elements in the Kelsenian project has remained, in the main, within the philosophi-
cal horizon of Kant and Neo-Kantianism. Here, however, the critique and recon-
struction of the methodological coherence of the basic norm is conferred with a
distinctive direction, by a shift to the philosophical horizon of the natural law theory
of the German Enlightenment.26 In its final, pre-Kantian formulation, in the philoso-
phy of Christian Wolff, this natural law theory represents a metaphysical foundation
for positive law which combines elements of both epistemology and ontology.27 The
analysis of the Kelsenian appropriation of Kant in the pure theory’s methodological
break with the natural law tradition reveals a misunderstanding of Kantian philoso-
phy. The misunderstanding leads to an incoherent application of the Kantian philo-
sophical framework and an effective regression behind the Kantian critique of
Wolffian metaphysics.28
1.3 Kelsen’s Constitutionalism
The structural analysis of positive law undertaken by the Pure Theory of 1934 situ-
ates the constitution as the first stage in the move from the abstract (the basic norm)
to the concrete within hierarchy of levels of a legal system of positive law (Kelsen
2002, 57–65). The constitution is thus the most abstract of the concrete levels of a
single-state system of positive law, and it is from this level that the further dynamic
process of concretization is derived. It is also the basis upon which, for Kelsen, posi-
tive law governs or regulates its own creation and in which the state is an entirely
25
See also Ross’s review of Kelsen’s collection of essays, What is Justice? (Ross 1957); and
Kelsen’s response (Kelsen 1959c).
26
This is the basis for the analysis presented by Peterson in Chap. 4 of this volume.
27
Kelsen, whilst appropriating the Wolffian notion of civitas maxima (Kelsen 1920, 1926), never
engages in a more extensive discussion of Wolff. There is no further reference to Wolff in later
work and the later discussion of the natural law tradition, from the late 1940s onwards, concen-
trates on the earlier work of Pufendorf (see, for example, Kelsen 1949).
28
See the analysis presented by Peterson in Chap. 4 of this volume.
juridical notion. This presentation of the constitution is retained in the revised and
expanded Pure Theory of Law, of 1960 (Kelsen 1967), and in the further discussion
of the constitution (Kelsen 1986),29 while redefining the cognitive character of the
basic norm, it retains the essentially methodological consideration of the subject.
The General Theory of Law and State (Kelsen 2006b), of 1945, which reworks
elements of the earlier Kelsenian approach of the 1920s, indicates a different orien-
tation to the conceptualization of the constitution. The consideration is centred upon
the juridical analysis and classification of constitutions, identifying different forms
of State as distinct juridical orders (Kelsen 2006b, 283–303). This leads to a return
to the more specific work on the notion of the constitution and a constitutional court
in the later 1920s and early 1930s (Kelsen 1927, 1928, 1929a, 1931) and, at the
outset of the 1920s, to the analysis of the constitution of the Austrian First Republic
(Kelsen 1923a, b).
The return is exhibited in the enduring pertinence of Kelsen’s legal thought in
contemporary constitutionalism.30 The post-World War II constitutional order in
European states, the central position of a constitutional court and the subsequent
diffusion and transfer of constitutionalism beyond Western Europe, in particular to
central and eastern Europe after 1989, are each a reflection of the continued effect
of Kelsenian constitutionalism. The position and function of the constitutional court
continues to raise questions of ‘constitutional justice’ – the regulation of law by
law – and whether the value-neutral Kelsenian response has been displaced by the
recognition of fundamental and socio-economic rights.31 The normative status of
the constitution is also raised by the position of the constitution, as a legal norm,
within and beyond the single-state system of positive law. The emergence and
development of a European legal order – the European Union – represents one
aspect of the wider phenomenon of supra-national legal forms which appear to com-
plicate the monistic unity of national and international law in Kelsenian legal sci-
ence. Thus, the question of the pertinence of the value-free Kelsenian approach
centres upon the comprehension of these supra-national phenomena within a hierar-
chical structure of levels of positive law.32 The question has ceased to be capable of
being posed at the level of the national constitution and has become essentially
global. In this transformation, the Kelsenian primacy of international law and its
associated notions of subordination and coordination are displaced by a more fluid
structure based upon openness and dialogue.33
The separation of Kelsenian concepts from the value-free method of Kelsenian
legal science, in the analysis of contemporary constitutionalism, renews the question
of the relationship between a theory of positive law and morality. The further path
29
A segment of Kelsen’s essay is contained in his General Theory of Norms (Kelsen 1991, 252ff).
30
This is the position presented by Carrozza in Chap. 5 of this volume. For an alternative Kelsenian
philosophy of constitutionalism, see (Carrino 2014).
31
As emphasized by Carrozza in Chap. 5 of this volume.
32
See Carrozza’s discussion in Chap. 5 of this volume.
33
See the analysis presented by Carrozza in Chap. 5 of this volume. See, also Fontanelli et al. 2010.
to the attempted dissolution of the entirety of the Kelsenian project arises from the
supplanting of the rationality of legal science and the validity of the basic norm by
a substantive, non-metaphysical moral or political rationality. The constitution then
assumes the position of a moral or political foundation for the legitimacy of the
system of positive law. The predominance of this further path in the work of Alexy
(2002, 2009, 2010), Dworkin (1977, 1986, 2005, 2011) and Habermas (1992, 1994,
1998, 2002) requires that the continued pertinence of the Kelsenian project be com-
bined with a critical engagement with the philosophical foundations of this body of
work.34 In this critical engagement, the Kelsenian methodological insistence upon
the separation of law from morality and politics, receives renewed pertinence with
the revelation of the inherent difficulties of a constitutionalism predicated upon the
combination of proceduralism and morality.35 The purported formalism of the
Kelsenian approach is revealed to provide a conceptual framework in which con-
temporary relationships between law, values and politics can be accorded both their
respective autonomy and overarching coherence.36
1.4 Against Practical Reason
The methodology of the pure theory renders law an autonomous field of positive
law for legal cognition. It involves the separation of cognition and will and the rejec-
tion of all conceptions of a rationality derived from the will. The will is considered
an incoherent basis for the derivation of the validity of positive law. The Kelsenian
rejection of practical reason, as a rationality arising from human action or human
will, is maintained throughout Kelsen’s work. The posthumous General Theory of
Norms (Kelsen 1979/1991) contains an explicit restatement of this position and
emphasizes the essential continuity in the notion of practical reason from Aristotle
to Kant (Kelsen 1991, 80).37 The General Theory of Norms, therefore, provides
fertile ground for the critical examination of Kelsen’s rejection of practical
reason.38
The General Theory of Norms reveals a simplification of the conceptual history
of practical reason, based upon an assertion of an essential historical continuity in
philosophical conceptions of practical reason, which enables its further characteri-
sation as an element of the natural law tradition.39 The counterpart to Kelsen’s
radical critique of practical reason is his insistence upon the exclusively cognitive
34
This is the position presented by Giordano in Chap. 6 of this volume. For alternative approaches,
centred upon a critique of neo-constitutionalism, see Comanducci 2002 and Pino 1999.
35
As emphasized by Giordano in Chap. 6 of this volume.
36
See the analysis presented by Giordano in Chap. 6 of this volume.
37
For Kelsen’s critique of Aristotle see (Kelsen 1991, 67–70; 309–310; 405–407); and for his cri-
tique of Kant see (Kelsen 1991, 13–18; 79–85; 286–288; 289; 314–315).
38
Viola conducts such an examination in Chap. 7 of this volume.
39
As emphasized by Viola in Chap. 7 of this volume.
and descriptive approach to the comprehension of the validity and normativity of

the legal norms of positive law. From the perspective of a more nuanced conception
of practical reason, one distinct from the natural law tradition, the cognitive and
descriptive orientation of the Kelsenian approach encounters substantial difficul-
ties.40 The difficulties centre upon an objective cognitive determination of the spe-
cific normativity of legal norms which is methodologically prohibited from any
reference to the will and human agency. The Kelsenian project, even its final, modi-
fied form in the General Theory of Norms, constrains rather than facilitates the
comprehension of the normativity of norms.41
The relationship between the Kelsenian project and practical reason also arises
in the question of legal interpretation within a legal science of positive law. The
notion of practical reason emerges from the requirement for legal decision-making
within the hierarchy of levels of a system of positive law. The structural necessity
for legal decision-making – the dynamic movement from the abstract to the con-
crete – opens the question of the character of this process of decision-making and
whether it contains a theory of legal interpretation or argumentation.
Kelsen confronts this question repeatedly commencing from his earliest works.
The critical review of Hermann Kantorowicz’s presentation, at the First German
Sociological Congress in 1910, on the ‘free law’ movement, with its focus upon the
centrality of legal decision-making, creates an initial distance from the question of
legal interpretation (Kelsen 1992). The Pure Theory of Law, of 1934, returns to this
question, and incorporates legal interpretation into the structural analysis of positive
law (Kelsen 2002, 77–89). The discussion of interpretation is maintained in the later
Pure Theory of Law, of 1960 (Kelsen 1967, 348–357). The further precisions, within
the structure of the Pure Theory, are presented in the Preface to Kelsen’s Law of the
United Nations (Kelsen 1952, xii–xvii).42
The legal science of positive law, as a structural analysis of positive law, situates
legal interpretation as an element of this structural analysis. The critical examina-
tion of the position accorded to legal interpretation in Kelsen’s analysis reveals a
conception of interpretation incapable of generating a substantive theory of legal
interpretation.43 The limitations of the Kelsenian conception of interpretation reflect
the methodological limitations of the construction of a legal science of positive law.
Here, the separation between cognition and will, and science and values, diminishes
the complexity of the process of legal interpretation.44
The difficulties of the Kelsenian position in regard to legal interpretation are also
revealed by the consideration of the particular question of irregular norms within
the legal system of positive law.45 An irregular norm is the possibility for a dynamic
system of positive law to produce a norm not in conformity with a higher-level
40
See the analysis presented by Viola in Chap. 7 of this volume.
41
See Viola’s discussion in Chap. 7 of the volume.
42
This is the position from which Lifante’s analysis commences in Chap. 8 of this volume.
43
As emphasized by Lifante in Chap. 8 this volume.
44
See the analysis presented by Lifante in Chap. 8 of this volume.
45
This is the focus of Apalategui’s analysis in Chap. 9 of this volume.
norm. With regard to this possibility, an interpretation has to be adopted in relation

to the non-conforming norm’s position within the existing structure of positive law.
For, the structure and, thus, the coherence of the system of positive law appear to be
presented, though the presence of an irregular norm, with a situation of fundamental
incoherence. The Kelsenian recognition of, and response to, this possibility (Kelsen
2002, 72–75) has been considered to be inadequate and, thus, to undermine the pos-
sibility for coherent structural analysis of positive law. In contrast to the predomi-
nant position, the conceptual resources of Kelsenian legal science enable a response
which, while requiring a modified construction of Kelsen’s project, indicates that
structural coherence can be maintained.46
Thus, whilst acknowledging the limitations of the methodological parameters of
Kelsenian legal positivism in relation to the elaboration of a general theory of legal
interpretation, the Kelsenian position retains a continued relevance to an interpreta-
tive resolution of an exemplary challenge – the irregular norm – to a system of posi-
tive law.
1.5 Legal Science and Human Rights
The development of contemporary, post-Kelsenian legal theory, centred upon non-

metaphysical theories of moral and political rationality, has situated the question of
human rights as one of its central considerations. The resulting philosophical or
political foundation for human rights, at both domestic and international level, have
appeared to displace, if not render redundant, the Kelsenian critique of the residue
of natural law contained in notions of the legal subject in the Pure Theory of Law,
of 1934 (Kelsen 2002, 37–53). The apparent redundancy is purportedly reinforced
by the emergence of a system of international human rights which exposes the limi-
tations of Kelsen’s belated recognition of a legal subject of international law (Kelsen
1943, 1944, 1948, 1952).
The critical re-examination of the Kelsenian position offers a more differentiated
interpretation, an interpretation which resists the designation of unqualified obso-
lescence.47 The continued pertinence of the Kelsenian project rests upon a reinter-
pretation of the compatibility of human rights, the methodology of a legal science
and the structural analysis of legal norms.48 This, in turn, requires that the interpreta-
tion extend to the Kelsenian conception of democracy and its associated notions of
values49 and political behaviour.50 Within this enlarged interpretative framework, the
maintenance of a pluralism of values is coupled with a majoritarian, parliamentary
form of democratic rule (Kelsen 1929b, 1955, 2013). This involves the presence of
46
As emphasized by Apalategui in Chap. 9 of this volume.
47
This is emphasized in the contributions from Champeil-Desplats (Chap. 10), Chwaszcza (Chap.
11) and Tedesco (Chap. 12) in this volume.
48
As discussed by Champeil-Desplats (Chap. 10) and Chwaszcza (Chap. 11) in this volume.
49
See the analysis presented by Champeil-Desplats in Chap. 10 of this volume.
50
As emphasized by Chwaszcza in Chap. 11 of this volume.
a minority, represented within a constitutional, parliamentary system, and from the

relationship between majority and minority derives the juridical question of the
protection of the minority and the wider sphere of values and political behaviour.51
The focus of the critical re-examination is upon Kelsen’s procedural or technical
comprehension of the institutional framework which provides this protection. This
indicates that the Kelsenian approach to a parliamentary form of democracy con-
tains uncertainty regarding the foundation of majority rule. It is unclear whether the
basis is simply numerical or whether the associated procedures and juridical form
of the state confer a general legitimacy upon the majority and its political rule. The
uncertainty is accompanied by a lack of clarity regarding the status of the minority
and the wider sphere of values and political behaviour.52 It is possible to trace this
uncertainty to the Kelsenian attempt to conceive of a juridico-political framework
which generates the conditions for social peace without extending to the imposition
or prohibition of values.53 These limitations then enable the further interpretative
possibilities of designating Kelsen as the “paradoxical precursor” of the contempo-
rary theory of neo-constitutionalism.54 It also permits the critical reconstruction of
the Kelsenian project as a republican theory of democracy and its confrontation
with contemporary political theories of human rights.55
The system of international human rights law has orientated the development of
international law in a different direction from that envisaged by Kelsen’s theory of
legal monism. The qualification or limitation of state sovereignty is centred upon
the recognition of an international legal subject of human rights law in place of the
cognitive operation of dissolving the “dogma of sovereignty” (Kelsen 2002, 124)
into a juridical notion. The Kelsenian structural analysis of a unified, hierarchical
relationship between the international and national legal orders of a global legal
system appears to be outmoded by the primacy accorded to the relationship between
international human rights law and state sovereignty.56 This, in turn, has led to the
elaboration of theories of a global, cosmopolitan legal order based upon fundamen-
tal human or political rights.
The continued Kelsenian presence arises from the realist, anti-utopian spirit of
the works of the 1940s (Kelsen 1942, 1944) rather than from their juridical prescrip-
tions. The critical re-examination of Kelsen invokes this realism as the perspective
from which to consider the juridical and political relationships between interna-
tional law, the state and the individual.57 The pure theory is modified by the adoption
of the notion of the fragmentation of international law. The Kelsenian presentation
51
As discussed by Champeil-Desplats (Chap. 10) and Chwaszcza (Chap. 11) in this volume.
52
See the analysis presented by Chwaszcza in Chap. 11 of this volume.
53
As emphasized, in different respects, by Champeil-Desplats (Chap. 10) and Chwaszcza (Chap.
11) in this volume.
54
This is the position of Champeil-Desplats in Chap. 10 of this volume (the phrase is that of
Champeil-Desplats).
55
See the analysis presented by Chwaszcza in Chap. 11 of this volume.
56
This the position from which Tedesco’s analysis commences in Chap. 12 of this volume.
57
See the analysis presented by Tedesco in Chap. 12 of this volume.
of an underdeveloped character of international law is replaced by an international

legal order without an essential structural unity. The absence of structural unity is
the reflection of the enhanced status and autonomy of the legal subject of interna-
tional law as a subject of international human rights law. For it indicates a relocation
of sovereignty to the subject of international law and the re-emergence of the notions
of the covenant, consent and rebellion as essential elements for the analysis of this
international order.58
1.6 The Triumph of Legal Science?
The persistence and pursuit of the Kelsenian project and, in particular, of a legal
science, includes the continued pertinence of the Kelsenian critique of natural law.
The Anglo-American theory of positive law, in its displacing of a legal science of
positive law with a theory of positive law, has maintained a distance from the natural
law tradition. However, the distance has been combined with the internal differen-
tiation of contemporary theorists of positive law in regard to the degree to which
morality is considered to have a legitimate presence within a theory of positive law.
The determination of the coherence of a rejection (exclusive legal positivism) or a
qualified recognition (inclusive legal positivism) of morality has assumed primacy
over the critique of the natural law tradition. The natural law tradition has also pro-
ceeded to develop beyond the parameters of the tradition subjected to Kelsen’s cri-
tique. The development has also produced a significant degree of internal
differentiation in which the natural law tradition has ceased to be predominant; and
the designation non-positivist has become the more frequent, contemporary term to
define these diverse theoretical approaches.
The reconsideration of Kelsen’s critique of natural law approaches the elements
of its critical framework on the basis of these further developments.59 It focuses on
a reconsideration of the Kelsenian definition of the modern natural law tradition and
the accompanying isolation of the concepts underlying this tradition. A central con-
ceptual element of the natural law tradition, for Kelsen, is the concept of God which
is held to provide the absolute foundation for the natural law tradition.60 The critical
force of the identification of the natural law tradition with this concept is held to
dissipate when it is confronted with the subsequent development of contemporary
non-positivist theories within the Anglo-American tradition (for example, Dworkin
1982, 1986, 2005, 2011, 2013; Finnis 1980; and Rawls 1999, 2001). For the Anglo-
American tradition is capable of evading both recourse to a deity as a fundamental
norm and the further difficulties which Kelsen demonstrates to arise from it.61 Thus,
the Kelsenian critique appears unable to be effectively sustained.
58
See the evaluation presented by Tedesco in Chap. 12 of this volume.
59
For critical analysis, see McGarry (Chap. 13) and Sieckmann (Chap. 14) in this volume.
60
This is the position from which McGarry commences his analysis in Chap. 13 of this volume.
61
As emphasized by McGarry in Chap. 13 of this volume.
The difficulties arising from the Kelsenian critique of natural law are also illumi-
nated through an examination of the contemporary German non-positivist tradi-
tion.62 Here, the specific normativity of law has developed against the methodological
prescriptions of Kelsenian legal science. This critical engagement with Kelsen chal-
lenges the capacity to designate the pure theory of law as scientific and the applica-
bility of the Kelsenian critique of natural law. The critical analysis reveals the
untenability of the notion of the basic norm and that an equally coherent conception
of legal normativity arises from the work of Gustav Radbruch (1878–1949), and its
further development in the contemporary work of Robert Alexy. This non-positivist
legal theory is founded upon a non-metaphysical conception of rationality which
positions it beyond the purview of the Kelsenian critique of natural law.63
The apparent overcoming of the Kelsenian critique by contemporary non-
positivist theories is qualified by the re-evaluation of responses to Kelsen from
within the natural law tradition.64 The responses, which focus upon Kelsen’s
extended essay, ‘The Natural Law Doctrine Before the Tribunal of Science’ (Kelsen
1949), reassert the coherence of a theory of natural law (Bodenheimer 1950; George
2000). The responses, as the representatives of a traditional and a new natural law
theory, when analysed from the position of Kelsenian legal science, enable the
reconstruction of a Kelsenian reply which reveals the incoherence of their respec-
tive theories of natural law.65 Thus, the Kelsenian position retains the capacity for
renewed critical engagement with elements of the natural law tradition.66
The guiding orientation of this edited collection is to renew the critical reflection
on the Kelsenian project of a legal science of positive law in order to discourage the
assumption of its merely historical interest. The enduring importance of Kelsen’s
work rests on the numerous questions it raises in relation to the conceptualization of
positive law. The return to these questions in Kelsenian Legal Science and the
Nature of Law is intended to reanimate critical reflection without the pretention to
generate a new orthodoxy.
References
Alexy, R. 2002. The Argument from Injustice: A Reply to Legal Positivism. Oxford: Oxford
University Press.
———. 2009. A Theory of Legal Argumentation. Oxford: Oxford University Press.
———. 2010. A Theory of Constitutional Rights. Oxford: Oxford University Press.
Bodenheimer, E. 1950. The Natural-Law Doctrine Before the Tribunal of Science: A Reply to
Hans Kelsen. Western Political Quarterly 2 (4): 335–363.
62
This is the underlying orientation of Sieckmann’s contribution (Chap. 14) in this volume.
63
See Sieckmann, (Chap. 14) in this volume.
64
This is the position from which Chiassoni commences his analysis in Chap. 15 of this volume.
65
See Chiassoni, (Chap. 15) in this volume.
66
See the analysis presented by Chiassoni in Chap. 15 of this volume.
Another random document with
no related content on Scribd:
THE REBEL CAMP.
Upon a high plateau, the heavy trees had all been cut away over a
large area. They were designed for the construction of an abattis, and
though nothing had been done beyond chopping down the heavy
timber, the large trunks and limbs, lying in all directions, would have
presented almost insurmountable obstacles to the approach of
cavalry or artillery, had the rifle-pits, just beyond, been filled with
men.
Crossing the rifle-pits, the Unionists were in the enemy’s camp,
though still more than half a mile from the fort. Here were the wall
tents of a regiment, all standing in complete order, with the camp-
fires still blazing, the copper pots of soup for dinner boiling over
them, and the half-made biscuits in the pans. Inside the tents
everything was just as the enemy had left it—pistols, shot-guns,
muskets, bowie-knives, clothing, tables partially set for dinner,
letters half-written, with the ink scarcely dry upon the open page,
cards thrown down in the midst of the game, overcoats, blankets,
trunks, carpet sacks, and so on through all the articles of camp life. It
seemed as if the men were out at guard-mounting, and expected to
return in ten minutes.
Along the river bank were long rows of log barracks, enough to
accommodate two or three thousand men, and finished comfortably.
Inside they bore the same indications that the inmates had
decamped without a moment’s warning.
ADVANCE OF NATIONAL GUNBOATS UP
THE TENNESSEE RIVER.
In accordance with the instructions of Commodore Foote, given
before the attack on Fort Henry, immediately after the capture of the
fort, February 6, the gunboats Conestoga, Lexington and Tyler,
under the command of Lieutenant Phelps, advanced up the river
twenty-five miles, to the crossing of the Bowling Green and Memphis
railway, breaking up a portion of the railway bridge, and rendering it
impassable. They next proceeded to destroy the rebel gunboats and
transports, capturing large quantities of munitions of war and
supplies, and advanced up the river for upwards of two hundred
miles to Eastport, in Mississippi, and Florence, at the foot of Muscle
Shoals, in Alabama, annihilating the rebel flotilla in the Tennessee
river. The expedition was welcomed at every point by the
inhabitants. Twenty-five Tennesseans enlisted at Cerro Gordo, where
also three steamers were seized, containing 250,000 feet of valuable
ship timber.
Toward the latter part of February, intelligence reached Fort
Henry that the rebels were fortifying a point on the Tennessee river,
near the Mississippi State line, whereupon Lieutenant-Commanding
William Gwin, with the gunboats Tyler and Lexington, were sent
forward to reconnoitre the position.
Having learned that the rebels had occupied and were fortifying a
place called Pittsburgh, nine miles above, on the right bank of the
river, he determined to attack them.
At twelve M. the Taylor, followed by the Lexington, Lieutenant-
Commanding Shirk, proceeded up the river. When within twelve
hundred yards of Pittsburgh, they were opened upon by the rebel
batteries, consisting of six or eight field pieces, some rifled. Getting
within one thousand yards, the Taylor and Lexington opened a well-
directed fire, and had the satisfaction of silencing the batteries.
They then proceeded abreast of the place, and, under the cover of
grape and canister, landed two armed boats from each vessel,
containing, besides their crews, a portion of company C, Captain
Thaddeus Phillips, and company K, First-Lieutenant John C. Rider,
of the Thirty-second regiment, Illinois Volunteers (sharpshooters).
Second-master Jason Gondy, commanded the boats of the Taylor,
and Second-master Martin Dunn, commanded the boats of the
Lexington. The landing was successfully accomplished. This small
force drove back the rebels, and held them in check until they had
accomplished their difficult object, which was to discover the real
strength and purpose of the enemy, and to destroy a house in close
proximity to the batteries. In addition to their artillery, the enemy
had a force of not less than two regiments of infantry, and a regiment
of cavalry.
SECTION OF THE MISSISSIPPI RIVER.
SHOWING THE DISTANCES FROM

NEW ORLEANS.
THE BURNSIDE EXPEDITION.
SAILING OF THE FLEET FOR HATTERAS

INLET.
January 12–20, 1862.
Immediately after the departure of the expedition to operate
against Port Royal and the adjacent territory, the organization of
another armament, to proceed to the North Carolina coast, was
commenced, and like its predecessor, was mainly fitted out at
Annapolis, Md., and gradually concentrated at Fortress Monroe.
After many delays, it sailed from that place for its destination on the
12th of January, 1862. The expedition consisted of a large naval force
of light-draught boats, taken from the commercial marine, fitted up
and armed, and a numerous retinue of transports and supply vessels,
all under the command of Commodore L. M. Goldsborough. There
were thirty-one gunboats in the expedition, exclusive of transports,
carrying an aggregate of ninety-four guns. Five of these, called
“floating batteries,” were vessels of strong hulls, heavily braced, and
cut down so as to present but a small surface when in action, and
designed to be anchored during an engagement. The entire number
of vessels of all classes was one hundred and twenty-five.
The land force consisted of about fourteen thousand men, under
the command of Brigadier-General Ambrose E. Burnside, who was
also Commander-in-chief of the expedition. It consisted of fifteen
regiments, divided into three brigades, commanded in their order by
Generals John G. Foster, Jesse L. Reno, and John G. Parke.
The vessels encountered adverse weather immediately after
starting from Fortress Monroe, and a number of the transports were
obliged to put back, having experienced one of those severe storms
which have rendered the coast of Cape Hatteras a terror and a
proverb to the mariner. For a time the expedition was in deadly peril.
Communication between the vessels of the fleet was rendered
impossible, and wreck and disaster appeared to be their inevitable
fate. Several gunboats and vessels were driven ashore and lost, and a
number of valuable lives sacrificed to the fury of the elements, in a
vain endeavor to succor some of the disabled vessels.
Along the whole coast of North Carolina there are many desolate
sand-bars or islands, varying from half a mile to two miles in width,
intersected by numerous inlets, which with few exceptions, are not
navigable. A principal one of these, known as Hatteras Inlet, opening
into the waters of Albemarle Sound, was the point where
Commodore Goldsborough’s fleet was now endeavoring to
concentrate.
On Monday morning, January 13, they were off Hatteras Inlet. Day
broke with a leaden sky, against which the angry, white-crested
waves raced their mad career along the reefs of Cape Hatteras, that
threw its headland oceanward but eight miles distant. Fourteen
steamers were laboring to weather the storm point. Bravely they
breasted on, staggering beneath the giant blows of each successive
sea, the decks swept fore and aft, and all on board reeling from side
to side like drunken men. One figure stood immovable, grasping the
bits and scanning the horizon for traces of ships as they rose on the
glittering mass of foam. It was the square, manly form of General
Burnside, whose anxiety for the fate of his army was intense. Many of
the vessels on which the troops were embarked were nothing more
than huge top-hampered river steamers, with projecting guards, that
would break up like cardboard if fairly struck by a sea.
At dark, all hands on the flag-ship were startled by the report of a
gun, and on reaching the hurricane deck they saw a large brig
drifting rapidly on to the bar. As it grew darker, and her outline
became less defined, the excitement became intense. She was
evidently in a most critical position, and every moment might be her
last. Slowly the black hull rose and fell, each time gliding nearer and
nearer to the vortex of white breakers, which, once reached, nothing
could save her. Suddenly a fringe of musketry fire surrounded her
bulwarks, and blue-lights were burnt in her tops. Volley after volley
succeeded each other in rapid succession, yet apparently no one
could help her; no human power dared face the tempest, and,
perhaps, share her doom. General Burnside boarded every steamtug
in the harbor; offered any reward, and also to go himself in aid of the
brig, but all held back. Were three hundred men to be launched into
eternity, and no effort made to save them? At last one brave seaman
volunteered to take his little steamer out—General Burnside jumped
aboard her—but by the earnest entreaties of the officers he delegated
the honorable position to one of his staff, for his heroic conduct had
nerved every brave heart in his command.
BURNSIDE’S FLEET AT HATTERAS INLET.
From the 13th of January until the 4th of February, the fleet at
Hatteras Inlet experienced an almost uninterrupted series of gales,
and the two dykes which reach the east and west boundaries of the
inlet, were fringed with perpetual spray and foam from the breakers.
The lighter vessels, comprising the propeller gunboats, the side-
wheel steamers, and most of the schooner transports, had gone
safely through the “Swash,” and were securely anchored some two
miles from the throat of the inlet, while the larger ships and barks
were still riding outside, with colors continually flying for a pilot.
Many of these vessels were crowded with men suffering for the
want of necessary supplies, especially water, and the largest of the
transports had a draught of from two to four feet more than the
specifications of the guarantee should have allowed. The
consequence was, that they grounded in attempting the passage. An
occasional cessation of a few hours in the storm afforded opportunity
that could be taken advantage of by vessels to try the dangerous
passage, aided by the tugs, that responded but shyly to the signals for
aid. And thus for days the severity of the gale defied all
communication between the vessels outside of the bar, as they
battled with a fiercer foe than that upon the land—fighting a very
hand-to-hand fight with storm and ocean.
Nearly three weeks passed before all the vessels of the expedition
were brought in safety through the swash to anchorage within the
inlet. Though the severity of the storm had threatened the
destruction of the entire armada, and occasioned the deepest gloom
and anxiety in the minds of thousands of loyal friends at home, the
brave and skillful commanders were never despondent, and met the
new dangers of each day with hopeful energy and perseverance.
Eight vessels of various sizes were cast away or foundered in the
storm, though but few lives were lost.
Colonel J. W. Allen and Surgeon T. S. Weller, of the Ninth New
Jersey, were drowned from a small boat while on a noble mission to
relieve a suffering crew.
Many of the large transports were grounded in attempting to pass
inside the inlet. From the necessity of lightening them, vast
quantities of property were lost or thrown overboard. An expedition
beset with such difficulties, all overcome by indomitable
perseverance, has seldom been recorded in the history of any
country.
CAPTURE OF ROANOKE ISLAND.
February 8, 1862.
After a detention of three weeks in sight of Hatteras Inlet,

occasioned by the severity of the storm, and the difficulty of piloting
the heavily-laden vessels through the inlet, the expedition received
sailing orders on the 4th of February, and proceeded on the next day
to the point of attack. The fleet anchored on the night of February 5,
about ten miles below the southern point of Roanoke Island, from
whence they again weighed anchor at eight o’clock on the morning of
the 6th. A storm retarded their progress, and they remained over
night without passing through Roanoke Inlet to Croatan Sound.
At ten o’clock on the morning of the 7th, the gunboats, under the
lead of the Flag-officer’s ship, moved forward, and were soon inside
the narrow passage leading into Croatan Sound, known as Roanoke
Inlet. The mainland juts eastward, forming a point of marshy land at
the southern extremity of Croatan Sound, which is the only navigable
water leading past Roanoke Island. A small island forms the eastern
boundary of the channel, while the western shore is a low marshy
point. Following Commodore Goldsborough’s squadron were the
gunboats of the coast division, all of which passed through without
interruption.
The S. R. Spaulding, with General Burnside on board, next passed
through, but the remainder of the transports were detained about
two hours. The rebel gunboats could now be seen close in shore,
evidently under the guns of batteries on shore. As the fleet passed
into the sound, a signal was fired from one of the rebel gunboats, to
announce its approach. This was about half-past ten o’clock. At half-
past eleven the first gun was fired from the flag-ship, and was replied
to by the rebels. The Flag-officer hoisted the signal: “This day our
country expects that every man will do his duty.” The effect was
electric. The men worked their guns with unflagging energy,
determined that their country should have nothing to complain of in
relation to them. As the Federal vessels came within shorter range,
the fire became more rapid, but the regular fire did not commence
until noon, when the flag-ship displayed the signal for close action.
The number of the rebel gunboats visible in the early part of the
engagement was seven. As the vessels came into closer action, they
moved to the northward, with the design of drawing the Union fleet
after them, and bring them under the guns of their batteries on the
island. At twelve o’clock the engagement became general, between
the retreating gunboats of the rebels and the Union fleet, varied by
an occasional shot from a battery on shore. The firing was
exceedingly brisk for some time, but the distance was evidently too
great for destructive effect. The one hundred-pound Parrott gun on
board the Southfield, to which the Flag-Officer transferred his flag,
boomed forth terrific explosions, followed by the roar and crash of
flying shells. The puff of smoke in the air was almost simultaneous
with the splash of fragments in the water. The rebel gunboats kept up
a steady fire in reply. Their fire was varied at times by the louder
report of a hundred-pound Parrott gun on board one of their vessels.
The Sawyer gun on board the Fanny, which was captured by the
enemy at Hatteras Inlet, was the most annoying in its effects, as the
range was long and very accurate.
The fire from the fort indicated a weak force working the guns. The
rebel gunboats retired steadily a considerable distance up the sound.
A line of piles driven into the bed across the principal channel,
obstructed the progress of the Union vessels in the pursuit of the
retreating rebels, who occupied an inner channel under the guns of
their battery. The Union fleet now turned their attention to the fort,
which kept up a steady and rapid fire.
On the afternoon of the 7th, the transports, with the land forces,
were all brought safely through Roanoke Inlet, and clustered securely
in rear of the bombarding fleet. General Burnside gave immediate
orders for landing the forces, which was done at a small cove, known
as Ashby’s Harbor. In less than an hour four thousand men were
landed, and by eleven at night, the entire force, excepting one
regiment, were on the island, and their bivouac-fires lighted up the
shore and the woods for the distance of a mile.
At nine o’clock on the morning of the 8th, a few shots were
exchanged between the Federal gunboats and the battery, which
ceased after fifteen minutes’ duration, and was not renewed during
the day. The rebel gunboats had retreated, and all interest now
centered in the movements of the land forces.
From definite information received by General Burnside, the
position of all the works on the island was clearly known, and his
movements were based on this knowledge. The plan of attack
consisted of a central attacking column, led by Brigadier-General
Foster; a left flanking column to attack the right of the enemy’s work,
under Brigadier-General Reno, and a right flank column to attack the
left of the enemy’s position, under the command of Brigadier-
General Parke.
The approach to the enemy’s position was through a swampy
wood, with a dense undergrowth, rendering it almost impenetrable.
An ordinary cart-road leading through this wood from the shore to
the fieldwork, a distance of about a mile, was the only mode of
communication. The woods in front of the battery had been cut down
a distance of three hundred yards, forming an open space to be
played on by the rebel guns, about two hundred feet wide. The woods
immediately in rear of the work were also cut down to permit the
manœuvreing of their own forces.
Their battery consisted of an earthwork with three faces covering
the open space before, and the woods at each side of the open space,
but with a general direction of fire to the front. The guns were
mounted in embrasure, and consisted of a twenty-four-pounder
brass Dahlgren howitzer, a long eighteen-pounder brass field-gun,
and a twelve-pounder brass field piece. In front of the work was a
ditch eight feet wide and about three feet deep, filled with water. The
earthwork was about thirty-five yards wide, and was erected across
the road. The ground in front of the work was a deep marsh, on
which the trees which were felled still lay. The difficult nature of this
ground was increased by the pits from which the turf and earth for
the fieldwork had been taken. Branches were strewn over the front of
the work, making it impossible to discover it from the wood in front.
The defending force consisted of about three hundred men, within
the breastwork, and about two thousand as a reserve, partly deployed
as skirmishers on the left of the battery. The rebels relied chiefly for
the defence of their flanks on the almost impenetrable nature of the
wood on each side. Their entire force, with the exception of the force
working the battery, was scattered in front and in the woods on the
left as skirmishers.
The Federal army advanced from the bivouac-ground of the
evening previous, where they had spent the night with nothing but
thin overcoats to protect them from a cold, driving rain. They had left
their knapsacks and blankets on the transports, each man carrying
nothing but his haversack, with three days’ provisions, and his
cartridge-box, with forty rounds of ball-cartridge. The centre, under
the command of General Foster, was composed of the Twenty-fifth
Massachusetts, Colonel Upton; Twenty-third Massachusetts, Colonel
Kurtz; Twenty-seventh Massachusetts, Colonel Lee, and the Tenth
Connecticut, Colonel Russell, and moved forward about eight o’clock.
They were followed by the second column, under General Reno,
consisting of the Twenty-first Massachusetts, Lieutenant-Colonel
Maggi; the Fifty-first New York, (Shepard Rifles,) Colonel Ferrero;
Ninth New Jersey, and the Fifty-first Pennsylvania, Colonel Hartraaf.
The third column, led by General Parke, was formed of the Fourth
Rhode Island, Colonel Rodman; First battalion, Fifth Rhode Island,
Major Wright; and Ninth New York, Colonel Hawkins.
A brilliant, well contested fight of two hours’ duration put the
Federal forces in possession of Roanoke Island, with all the batteries,
mounting thirty guns, and Fort Forrest, on the mainland, mounting
eight guns. It resulted in the unconditional surrender of the rebel
army on the island, numbering 2,500 men, with all their arms and
munitions of war. Captain O. Jennings Wise, son of ex-Governor
Wise of Virginia, lost his life in this engagement. The Governor
himself, being absent from his command on the day of battle,
escaped.
Colonel Russell, of the Tenth Connecticut, and Lieutenant-Colonel
De Monteuil, of the New York Fifty-third, were killed.
The Federal loss was fifty killed and one hundred and fifty
wounded. That of the rebels was about twenty killed, and sixty
wounded.
EVACUATION OF BOWLING GREEN, KY.
February 14–16, 1862.
Before the commencement of hostilities in the State of Kentucky,

the rebel General Buckner, Commander-in-Chief of the State militia,
seized upon the town of Bowling Green, in Warren county, in the
southern section of the State, and occupied it as the grand centre and
depot of future military operations. The position was well chosen. It
was situated on the line of the Louisville and Nashville railway, and
connected also by rail with Memphis and Nashville; while water
communication through the Barren river was open to the Green
river, the Ohio, and Mississippi, and thus to all important points.
As a military post, its means of defence were also of the first
importance. The town lies on the south bank of Barren river, at a
point where the channel makes a bend not unlike a horse-shoe. The
buildings are situated a distance of five hundred yards from the
banks, which rise by jutted rocky sides fifty feet from the water level.
A series of nine swelling hills, or knolls, completely encompass the
town on the land side, and on these Buckner had erected a cordon of
forts; some of stone, and others of earth, twenty feet in thickness—all
of great magnitude. Forty-nine guns were mounted on the various
fortifications, and great engineering skill had been displayed in their
construction.
On learning the defeat of Zollicoffer’s troops at Mill Spring, on the
19th of January, General A. S. Johnson, on the 25th, ordered the
evacuation of Bowling Green, and General Floyd’s brigade
immediately marched from thence to Fort Donelson. Active
measures were then taken to carry out the order further, by shipping
heavy ordnance to Columbus, which place General Grant’s
reconnoissance at that time had induced the Confederates to believe
would be the first point of attack from the Federal army.
After the capture of Fort Henry, on the 6th of February, by which
the enemy’s communication with Columbus was intercepted, the
remaining troops were distributed, some to Fort Donelson, some to
Nashville and other points; and a work of indiscriminate destruction
of the buildings and property in the town commenced. The beautiful
iron railway bridge, and the wooden turnpike bridge over the Barren
river were first destroyed. The railway bridge over the Green river,
some forty miles to the north-east, had long since been burned, and
the forces of General Buell had been deterred from crossing that
stream up to the present time.
On the 11th of February, however, General Mitchell’s division,
encamped on Bacon creek, seven miles north of the Green river, were
ordered to advance on Bowling Green, and on that day marched to
Camp Madison, one mile north of the river; where receiving
confirmatory information of the retreat of the rebel forces, they
hastened forward.
Thursday morning, February 13th, the division—infantry, cavalry,
and artillery, left Camp Madison for Bowling Green, forty-two miles
distant, and made twenty miles the first day. The railroad appeared
to be but little injured, but all the buildings were destroyed. The
roads the first day were in splendid order, but much obstructed by
trees, which were, however, speedily removed by two companies of
mechanics and engineers, who swung their axes with energy, and
were never delayed over fifteen minutes by any impediment. The
ponds along the road were filled with dead horses and cattle, so long
as any cattle were to be found to fill them. The troops rested at noon
at Cave City, which was very nearly destroyed. On the second day
they started again for Bowling Green. The next morning was cold,
with about an inch and a half of snow, but they were up betimes and
on their way, the Nineteenth Illinois ahead as usual, with her blue
flag waving triumphantly. The road was obstructed, and filled with
signs of the rapid retreat of Hindman’s forces.
Hearing repeatedly that the railroad bridge over Barren river was
destroyed, and that the Confederates would not stand this side of the
river, Colonel Turchin ordered the cavalry and one battery ahead.
The ranks opened to the right and left, and Captain Loomis’ battery
dashed by in fine style toward Bowling Green. The men hearing the
cannon roar, hurried on, and reached the banks of the river opposite
Bowling Green, about two o’clock, making the forty-two miles in
about thirty-seven hours. After the firing commenced they seized
every team along the road, and had the knapsacks drawn by horses
the rest of the way, much to the relief of tired shoulders. General
Turchin fired the first shell into the town, and immediately three
regiments were seen scampering to the cars, and putting off in great
confusion.
But though within a mile of Bowling Green, they were powerless to
interfere, for there was Barren river, wide and unfordable, between
them, and both bridges destroyed. The Texan Rangers soon began to
fire all the public buildings. Fifty men under Captain Scott, got ready
to cross in a little skiff by parties, and try to drive out the few who
remained to perform this work, but the General would not allow it.
They then pitched their tents and prepared to wait until a bridge
could be erected. When snugly tucked in their blankets, the assembly
beat to arms, and the brigade was soon in ranks. They expected to
march to town, but were put on the back track some three miles.
They left the main road, and soon came to the river, where they
built fires and rested as well as possible. Here the repairs of an old
wherry were completed, and they crossed the river, protected by
artillery. There was a slight snow falling, and it was uncomfortably
cold. The Nineteenth and Twenty-fourth, Hecker’s Illinois, crossed
first. The men suffered intensely from cold, but declared that they
had rather be shot than frozen, and pushed on. But no enemy
appeared, and the tired soldiers soon surrounded the fires, some of
which had been burning for several days. All the public buildings and
several warehouses, filled with pork, beef, coffee, etc., were
destroyed. A pile of grain thirty feet by twenty, was burning when the
Federal troops arrived. Four engines and several cars were also
burnt. The cars had been carrying away provision for a week, but still
immense quantities were destroyed. Boxes of guns, large numbers of
bowie-knives roughly fashioned of iron, every conceivable kind of
shooting apparatus, and all sorts of hardware for cooking and other
uses were found in immense quantities.
Bowling Green is a town of considerable commercial importance,
and possesses many large stores and warehouses. The majority of the
inhabitants were loyal in their sentiments, though many influential
citizens sympathized with the rebellion; but when the work of
destruction commenced, no discrimination was allowed, and all were
made sufferers. The unexpected arrival of General Mitchell’s army,
and the terror of his artillery, drove the rebels from the town before
their incendiary intentions were fully consummated, and much
private property was saved which would else have been consumed by
the flames.
When General Buckner was exercising military sovereignty in
southern Kentucky, one of his proclamations demanded that every
man in Wright county should deliver to him at his headquarters, one
gun, or twenty dollars in money, under the penalty of fifty dollars’
fine, or ninety days’ imprisonment. In response to this edict, a
motley collection of old squirrel and shot-guns were added to the
Confederate stores, and with other treasures were packed in
buildings at Bowling Green. A hasty evacuation of that stronghold
having become a “military necessity,” these buildings were fired by
the retreating rebels, and among the ruins which met the curious
gaze of General Mitchell’s men when they entered the town, were
scattered piles of the iron parts of these guns, in several places a foot
thick.
CAPTURE OF FORT DONELSON.
February 13–16, 1862.
Bravely as the army of the West had sustained the honor of the
Union, the crowning glory of taking Fort Donelson remained to be
accomplished. To attack a strongly-defended fort, formidable by
nature and rendered almost impregnable by military art, was a work
of extreme danger, nay, of impossibility to less resolute men.
ATTACK ON FORT DONELSON BY THE FEDERAL GUNBOATS.

THE SURRENDER OF FORT DONELSON.
The relative positions of Fort Henry and Donelson, the former on

the Tennessee river and the latter on the Cumberland, should be
clearly understood, in order to comprehend the difficulties of this
undertaking.
Fort Henry had been occupied by Federal troops, and it became
necessary to effect the reduction of Fort Donelson, in order to open
the river to the navigation of the national flotilla, and to reach
Nashville, the capital of Tennessee.
The surrender of Fort Henry took place on the 6th of February.
One of the gunboats, the Essex, being disabled, was obliged to return
to Cairo for repairs, while the Lexington, Conestoga and Tyler,
returned to the Ohio, in order to reach the Cumberland river to make
the ascent to Fort Donelson. Commodore Foote having completed
his preparations, left Cairo on the 11th of February for the scene of
action—the Carondelet having previously been sent forward to
reconnoitre the position.
On the same day General Grant issued his orders for the
movement of the land forces in two divisions, on the following
morning. The distance from Fort Henry to Fort Donelson across the
land lying between the two rivers, is fourteen miles. There are several
roads running from Fort Henry to Dover, near which Fort Donelson
was situated. The divisions were disposed by brigades, one of which
was to be thrown into Dover to cut off the retreat of the enemy, if
attempted by that route.
Fort Donelson takes its name from Andrew Jackson Donelson, a
citizen of Tennessee, and its construction was commenced as early as
May, 1861. It occupied the best position for defence on the
Cumberland river, standing on the summit of a fine slope, rising to
the height of one hundred and fifty feet from the river, on its right
bank, and mounted sixteen guns. There were two water batteries,
one of which was about twenty or thirty feet above the river, and
defended by nine pieces, eight thirty-two-pound guns, and one ten-
inch columbiad. The second was some sixty feet above, and was
mounted with one ten-inch columbiad, and two thirty-two pound
carronades.
Both these batteries were sunken or excavated in the hill-side. In
the lower one, strong traverses were left between the guns, to secure
them against an enfilading fire. The elevation above the water at the
time of the gunboat attack, gave them a fine command of the river,
and made the task of attacking them in front an arduous one. The
range of the guns in arc, was, however, quite limited.
The third occupied the summit of the hill, and mounted four 128-
pound guns. The camp was behind the fort on the hill, but within
range of gunboats on the river.
THE NAVAL ATTACK.
On the night of February 11th, the St. Louis, (the flag-ship,)
Louisville, and Pittsburg, sailed from Cairo. The Carondelet, as
already stated, had been dispatched a day or two in advance, and at
Paducah, on the noon of the 12th, the fleet was joined by the
Conestoga and Tyler. Of these the three first were iron-clad vessels.
From Paducah the fleet was accompanied by sixteen transports,
carrying six thousand infantry, and cavalry and artillery.
The fleet followed the flag-ship of Commodore Foote, as they
turned out of the Ohio, and began the ascent of the Cumberland.
Passing onward from the Ohio, sweeping through Kentucky and
Tennessee up to the western boundaries of Virginia, the fleet carried
the national ensign, which was met with continual cheers and
responses from the people on the banks.
About four o’clock in the afternoon, a messenger steamer, the Alps,
met the fleet, with a dispatch from General Grant, requesting all
haste to be made, as the gunboats were anxiously expected. Putting
on steam, the Alps took the St. Louis and Louisville in tow, leaving
the transports to hasten as rapidly as they could be urged. The
former arrived within two miles of the fort at twelve o’clock, on the
night of Thursday, the 13th.
On the morning of that day, the Carondelet, by order of General
Grant, had bombarded the fort, and single-handed, commenced the
attack on the works. On the previous day she had advanced and fired
eight shots, but without drawing out any reply. The attack of the 13th
was differently met by the fort, as the shells were briskly responded
to, and a vigorous fire was maintained for two hours. The Carondelet
kept her bows hard on the fort, carefully guarding against presenting
her broadside to the enemy. She fired one hundred and twenty-eight
shots in ninety-five minutes. At the end of that time, a ball from one
of the 128-pound guns entered her port-bow, and struck a portion of
her machinery. Six men were slightly wounded by the splinters which
flew from the ship’s timbers. She retired beyond the range of the
guns, to ascertain the amount of damage, and in the afternoon, after
repairing, was again ordered to the charge, and fired a number of
shots, but without sensible effect.

Textbook Kelsenian Legal Science and The Nature of Law 1St Edition Peter Langford Ebook All Chapter PDF

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Textbook Kelsenian Legal Science and The Nature of Law 1St Edition Peter Langford Ebook All Chapter PDF

Uploaded by

Copyright:

Available Formats

Kelsenian Legal Science and the Nature

of Law 1st Edition Peter Langford

Law and the Russian State Russia s Legal Evolution from

The Nature of International Law Gerry Simpson

Coercion and the Nature of Law First Edition Kenneth

Essentials of Business Law and the Legal Environment

The hidden history of international law in the Americas

Netherlands Yearbook of International Law 2016 The

Business Law and the Legal Environment, Standard

Islamic legal revival : reception of European law and

More information about this series at http://www.springer.com/series/6210

Kelsenian Legal Science

ISSN 1572-4395 ISSN 2215-0315 (electronic)

Library of Congress Control Number: 2017932650

© Springer International Publishing AG 2017

Printed on acid-free paper

This Springer imprint is published by Springer Nature

We are indebted to Neil Olivier, Diana Nijenhuijzen, Christi Jongepier-Lue and

May 2016 Peter Langford

1 Introduction: Kelsen, Legal Science and Positive Law������������������������ 1

Part I Legal Science Before the Tribunal of Validity

Part II Beyond Natural Law?

Part III Kelsen’s Constitutionalism

Part IV Against Practical Reason

8 Kelsen and Legal Interpretation������������������������������������������������������������ 141

Part V Legal Science and Human Rights

Part VI The Triumph of Legal Science?

Ian Bryan Lancaster University Law School, Lancaster University, Lancaster, UK

Jan Sieckmann Faculty of Business, Economics, and Law, University of

José Manuel Cabra Apalategui is senior lecturer in the Department of Financial

Paolo Carrozza is professor of constitutional law at the Scuola Superiore

Véronique Champeil-Desplats is professor in public law at the University of Paris

Bobbio: pourquoi la démocratie? (Houdiard Editeur, 2008) and Méthodologies du

Pierluigi Chiassoni is professor of jurisprudence at the Department of Law, the

Christine Chwaszcza is professor of social and political philosophy at Cologne

Valeria Giordano is associate professor in the Department of Legal Science,

Peter Langford is senior lecturer in law, Department of Law and Criminology,

(Routledge 2015) and The Reconstruction of the Juridico-Political: Affinity and

Isabel Lifante Vidal is senior lecturer in legal philosophy at the University of

Claes Peterson is professor of legal history in the Department of Law, Stockholm

Pierre-Yves Quiviger is professor of philosophy at the University of Nice Sophia

University of Bamberg and the University of Erlangen-Nürnberg and DAAD visit-

Francescomaria Tedesco is research fellow in philosophy of law at the University

Francesco Viola is emeritus professor of legal philosophy in the Faculty of Law,

Peter Langford, Ian Bryan, and John McGarry

Kelsenian legal science is a distinctive theoretical project for the comprehension of

© Springer International Publishing AG 2017 1

law (sociology of law) or a metaphysical conception of the normativity of law (natu-

contributors acknowledge the continued pertinence and centrality of the question of

1.1 Legal Science Before the Tribunal of Validity

1.2 Beyond Natural Law?

1.3 Kelsen’s Constitutionalism

1.4 Against Practical Reason

and descriptive approach to the comprehension of the validity and normativity of

norm. With regard to this possibility, an interpretation has to be adopted in relation

1.5 Legal Science and Human Rights

The development of contemporary, post-Kelsenian legal theory, centred upon non-­

a minority, represented within a constitutional, parliamentary system, and from the

of an underdeveloped character of international law is replaced by an international

1.6 The Triumph of Legal Science?

SECTION OF THE MISSISSIPPI RIVER.

SHOWING THE DISTANCES FROM

SAILING OF THE FLEET FOR HATTERAS

May 2016 Peter Langford

1 Introduction: Kelsen, Legal Science and Positive Law�� 1

8 Kelsen and Legal Interpretation�� 141

1.1 Legal Science Before the Tribunal of Validity

1.2 Beyond Natural Law?

1.3 Kelsen’s Constitutionalism

1.4 Against Practical Reason

1.5 Legal Science and Human Rights

The development of contemporary, post-Kelsenian legal theory, centred upon non-

1.6 The Triumph of Legal Science?