Seperation of Law and Morality in Hans Kelsen’s Theory of Obligation

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Mehraram Parham

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Journal Paper

Paper Information

Journal: JOURNAL OF PHILOSOPHICAL MEDITATIONS Year:2021 | Volume:11 | Issue:26 Page(s): 339-379

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Information Journal Paper

Title

Seperation of Law and Morality in Hans Kelsen’s Theory of Obligation

Author(s)

Mehraram Parham | Issue Writer Certificate

Keywords

Key Words: Empowerment

Kelsen

Legal Obligation

Morality

Normativity

Pure Theory

Abstract

The purity of the “Pure Theory” demands the separation of law from morality. Therefore, Kelsen tries to offer an ideal form of legal statements, which are distinguishable from morality. In his traditional theory, with its substantial normativity, according to Paulson, he sustains this independency by proposing the category of imputation as a conditional statement, in confront to imperatives of morality. Here, norm addressees are authorities, not legal subjects. But, the normativity of his positivism leads to deontic form of obligation which is in both law and morality univocal. It means that the basis of “ought” in both fields is the rational necessitation which gives the basic norm, as a source of normativity of any legal system, a moral character. Kelsen was aware of the problem. Therefore he suggested his new theory, i.e. the theory of empowerment. In second theory “ought” has a meaning of competency to exercise power. Now, obligation is not more a first-hand concept in legal theory. Therefore, the ideal form of law is neither deontic, nor imperative and norm addresses are authorities. Therefore the form is the purest.

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