Domesticating Kelsen
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Domesticating Kelsen

Towards the Pure Theory of English Law

Alexander Orakhelashvili

There exists a genuine degree of scepticism as to whether Hans Kelsen’s pure theory of law can rationalise the intricacies of the English legal system. This ground-breaking book examines pertinent aspects of English law relating to constitutional patterns of law-making, the relationship between law and policy, and the ultimate efficacy of the legal order, through the pure theory’s prism. It demonstrates that while Kelsen’s theory is highly suitable to examine some of these issues, in relation to some aspects of English law it actually possesses the analytical cutting edge.
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Chapter 3: Law and its others: natural law, morality and social policy

Alexander Orakhelashvili

Abstract

Chapter 3 focuses on the relationship between legal and non-legal factors within the legal system. The pure theory clearly formulates its focus so as to include positive law within it and exclude non-legal considerations from it. This does not mean, however, that the pure theory does not admit that non-legal considerations influence the development of the law. But the key question is how that happens. Kelsen’s emphasis on the positive legal aspect of authority distinguishes his analysis from sociological and interest-based theories in the sense that, while the English legal system deals with those non-legal considerations on its own terms, those considerations are not the legal theory’s business.

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