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: Conclusion

Alexander Orakhelashvili

Abstract

The claim that common law is based not on logic but experience can be heard rather frequently. However, the contention that common law is not based on logic is only partly accurate. Logic and experience do not have to be seen as being in a mutual contradiction. It may be right that unlike the codified civil law, common law is not as centrally planned or arranged as civil law systems seem to be most of the time. The development of the range of substantive principles of common law has historically been conducted in ways that will not always reflect the a priori logical design. Even so, however, the common law still possesses its own systemic logic. It just happens that this logic is different from that underlying other legal systems. Nevertheless, the basic categories with which English law operates, and its basic structural foundations can be fully explained through the general jurisprudential method that could be used in any other legal system as well.

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