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The Idea of a Pure Theory of Law

An Interpretation and Defence

By: Christoph Kletzer
Media of The Idea of a Pure Theory of Law
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Published: 25-01-2018
Format: Hardback
Edition: 1st
Extent: 156
ISBN: 9781509913435
Imprint: Hart Publishing
Dimensions: 234 x 156 mm
RRP: £50.00
 

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About The Idea of a Pure Theory of Law

Most contemporary legal philosophers tend to take force to be an accessory to the law. According to this prevalent view the law primarily consists of a series of demands made on us; force, conversely, comes into play only when these demands fail to be satisfied. This book claims that this model should be jettisoned in favour of a radically different one: according to the proposed view, force is not an accessory to the law but rather its attribute. The law is not simply a set of rules incidentally guaranteed by force, but it should be understood as essentially rules about force.

The book explores in detail the nature of this claim and develops its corollaries. It then provides an overview of the contemporary jurisprudential debates relating to force and violence, and defends its claims against well-known counter-arguments by Hart, Raz and others.

This book offers an innovative insight into the concept of Pure Theory. In contrast to what was claimed by Hans Kelsen, the most eminent contributor to this theory, the author argues that the core insight of the Pure Theory is not to be found in the concept of a basic norm, or in the supposed absence of a conceptual relation between law and morality, but rather in the fundamental and comprehensive reformulation of how to model the functioning of the law intended as an ordering of force and violence.

Table Of Contents

1. Introduction
2. The Purity of the Pure Theory of Law
I. What is the Pure Theory of Law?
II. The Contest of Standpoints
III. The Kantian Manoeuvre
IV. The Purity of the Pure Theory
V. The Primitive Function of the Law
VI. The Demand Model of the Functioning of Law
3. Law as an Order of Force or Violence
I. Law and Violence
II. The Germ of Law
III. Violence and Self-Help in Roman Law
IV. The Effectiveness of Law
V. Force as Content of the Law
VI. Law and State
VII. Criticism
4. Law as Permission
I. Introduction
II. Empowerment
III. Permission
IV. The Naturalistic Logic of Permission
V. The Functioning of Permissions
VI. Exclusionary Permissions?
5. The Law as a Schema of Interpretation
I. Introduction
II. Schemata, Fictions and Institutional Facts
III. Schemata and Imagination
IV. Law and Order
6. Normative Monism
I. Introduction
II. Legal Monism
III. Normative Monism
IV. The Great Incompatibility
V. The Normative Jinx
7. Absolute Positivism
I. Introduction
II. Relative Positivism
III. Absolute Positivism Projected
IV. Agrippa's Trilemma
V. Absolute Positivism Developed
VI. Law as Legal Process
VII. The Basic Norm
8. Conclusion

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