Kelsen's Development of the Fehlerkalkuel-Theory
18 Pages Posted: 16 Jan 2009
Date Written: March 1, 2005
In this article the author follows the arguments of the Vienna School of Legal Positivism, and especially of Hans Kelsen, as concerns the intellectual topos of "law contrary to law". The issues dealt with feature under various headings - albeit always prominently - in the national schools of legal theory. What distinguishes the Viennese approach is the generality and abstractness which facilitate the unification of legal phenomena generally considered unrelated. The goal of the article is threefold: firstly, to bring the important, albeit mostly maltreated theory of the Fehlerkalkul ("error-calculus") into the light of theoretical attention; secondly, to demonstrate Kelsen's method of developing legal philosophy only given concrete problems of the positive law and its theory; finally, to deal with criticism.
Keywords: alternative authorisation, legal positivism, ultra vires
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