The essay addresses the positivistic approach to the rule of law through the analysis of how Hans Kelsen – as a major representative of the European 20th century legal positivism – developed a theory of the rule of law detached from any strong value dimension. More precisely, the essay investigates how such a separation was for Kelsen functional to developing a certain kind of democratic theory which had a clear relativistic connotation. After that the essay highlights how Kelsen’s approach to the rule of law might imply some problems just for a modern and representative democracy.
Legal positivism as a limitation of the rule of law
Lagi, Sara
2024-01-01
Abstract
The essay addresses the positivistic approach to the rule of law through the analysis of how Hans Kelsen – as a major representative of the European 20th century legal positivism – developed a theory of the rule of law detached from any strong value dimension. More precisely, the essay investigates how such a separation was for Kelsen functional to developing a certain kind of democratic theory which had a clear relativistic connotation. After that the essay highlights how Kelsen’s approach to the rule of law might imply some problems just for a modern and representative democracy.
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