Stateless Law: Kelsen's Conception and its Limits

47 Pages Posted: 25 Apr 2005  

Alexander Somek

University of Iowa - College of Law

Multiple version iconThere are 2 versions of this paper

Date Written: April 2005

Abstract

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

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

Alexander Somek (Contact Author)

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

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