47 Pages Posted: 25 Apr 2005
Date Written: April 2005
Hans Kelsen's claim that the state and the law are identical is surrounded by a somewhat mystical air. Yet, the "identity thesis" loses much of its mystical aura when it is seen as an attempt to recast the state, qua social fact, in deontological terms. The state is seen as a condition necessary to account for the validity of legal acts. Indeed, the meaning of the state is reduced to the function performed by a conception of order in the reproduction of a system of norms. No further social fact would attest to its existence. Accordingly, all law is essentially, and principally, law sans state.
Keywords: jurisprudence, constitutional law, state, meaning of law, Kelsen
JEL Classification: K10, K49
Suggested Citation: Suggested Citation
Somek, Alexander, Stateless Law: Kelsen's Conception and its Limits (April 2005). U Iowa Legal Studies Research Paper No. 05-15. Available at SSRN: https://ssrn.com/abstract=708304 or http://dx.doi.org/10.2139/ssrn.708304