✔ Brazil SFE®: Kelsen's Pyramid - Pure Theory of Law

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Kelsen's Pyramid - Pure Theory of Law - The Hierarchy of Norms

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Analyzing the effectiveness and applicability of norms, Hans Kelsen bases one of his theories, employed in the analysis of constitutional review .

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Kelsen's Pyramid - Pure Theory of Law - The Hierarchy of Norms

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Also known as Kelsen's Legal Pyramid Theory , studied in universities to explain the constitutional system, it is an important legacy of this renowned writer: " The legal order is a system of norms. The question arises: what makes a profusion of norms a system? When does a norm belong to a certain system of norms, to an order? This question is intimately linked to the question of the validity of a norm. "

Kelsen ultimately concludes that the legal system is a system of norms, and these norms are arranged hierarchically, following the norms of the country's Constitution, which sits at the top of the pyramid. Above the Constitution is the fundamental norm (grundnorm), present in all legal systems worldwide, from which all law emanates. This hierarchical system of norms allows for the control of the constitutionality of norms.

Kelsen says: " The legal order is not a system of legal norms ordered on the same plane, situated side by side, but is a tiered construction of different layers or levels of legal norms. Its unity is a product of the interdependent connection that results from the fact that the validity of a norm, which was produced in accordance with another norm, rests on that other norm, whose production, in turn, is determined by another; and so on, until it finally reaches the fundamental norm – which is presupposed. The fundamental norm – hypothetical, in these terms – is therefore the ultimate foundation of validity that constitutes the unity of this creative interconnection. "

Hans Kelsen (Prague, October 11, 1881 – Berkeley, April 19, 1973) was an Austrian jurist and philosopher, considered one of the most important and influential scholars of law.

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By around 1940, Kelsen 's reputation was already well established in the United States for his advocacy of democracy and the Pure Theory of Law (Reine Rechtslehre). Kelsen 's academic stature extended beyond legal theory, encompassing political philosophy and social theory. His influence spans the fields of philosophy, legal science, sociology, democratic theory, and international relations.

Towards the end of his career, while at the University of California, Berkeley, Kelsen rewrote the Pure Theory of Law in a second version. Throughout his active career, Kelsen also made significant contributions to the theory of judicial review, the hierarchical and dynamic theory of positive law, and the science of law. In political philosophy, he was a proponent of the identity theory of the rule of law and an advocate of the explicit contrast between the themes of centralization and decentralization in the theory of government. Kelsen also defended the position of separating the concepts of state and society in their relation to the study of the science of law.

The reception and criticism of Kelsen 's work and contributions were extensive, with notable defenders and detractors. His contributions to the legal theory of the Nuremberg trials were both supported and contested by various authors, including Dinstein at the Hebrew University of Jerusalem. Also from Kelsen , the defense of continental legal positivism (of a neo-Kantian nature) was supported by H.L.A. Hart in its Anglo-American form, which was debated in its Anglo-American form by scholars such as Ronald Dworkin and Jeremy Waldron .

He was one of the most prolific literary producers of his time, having published around four hundred books and articles, most notably the Pure Theory of Law ( Reine Rechtslehre ) due to its widespread dissemination and influence.

Kelsen was born in Prague into a Jewish family and at the age of three moved with his family to Vienna. He studied law at the University of Vienna, receiving his doctorate in 1906. In 1911, he received his habilitation and published his first work, Fundamental Problems of the Theory of State Law ( Hauptprobleme der Staatsrechtslehre ), which received a second edition, with a famous preface, in 1923.

In 1912, Kelsen married Margarete Bondi , with whom he had two daughters. In 1919, he became a professor of Public Law at the University of Vienna.

He is considered the main representative of the so-called Normative School of Law , a branch of the Positivist School .

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