10 Derecho - El Iuspositivismo de Kelsen

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In this section, the speaker introduces the topic of legal philosophy and specifically focuses on concluding the major conceptions of law throughout history, particularly delving into legal positivism.

Legal Positivism and Hans Kelsen

• Legal positivism, also known as ius positivism, is epitomized by Hans Kelsen (1881-1973), a significant legal philosopher born in Prague.

• Hans Kelsen's background includes being considered an Austrian author due to his education at the University of Vienna.

• His seminal work "Pure Theory of Law" (1934) aims to establish a clean theory of law.

Understanding Legal Positivism

• The emergence of modernity in the 16th century introduced a scientific method based on empirical observation and mathematical laws.

• This scientific approach revolutionized traditional practices and paved the way for legal positivism.

• Figures like Copernicus and Galileo contributed significantly to scientific progress by challenging existing beliefs about celestial bodies.

• Copernicus proposed heliocentrism, while Galileo supported it with evidence through telescopic observations.

The Rise of Positivism and Vienna Circle

• The success of science led to the rise of authors like Auguste Comte (1798-1857), advocating for positivism that prioritizes scientific discourse over other forms.

• According to Comte, only scientific discourse holds legitimacy in understanding reality.

• In early 20th-century Vienna, intellectuals formed the Vienna Circle emphasizing logical empiricism and verification principles.

Explanation of Scientific Knowledge

In this section, the speaker discusses the concept of scientific knowledge and the importance of experimental verification in determining whether a piece of knowledge can be considered scientific.

Verification Experimental and Scientific Knowledge

• Scientific knowledge is based on empirical observation and direct experimentation with reality.

• The Vienna Circle heavily criticizes metaphysics due to its lack of experimental verification.

• Traditional metaphysical topics like God, soul, and substance are difficult to verify experimentally.

• Sciences such as psychology, sociology, and economics aimed to become more scientific during the positivist era.

Challenges in Establishing Social Sciences as Scientific Disciplines

This part delves into the challenges faced by social sciences like psychology, sociology, and economics in establishing themselves as true scientific disciplines during the positivist movement.

Social Sciences' Quest for Scientific Status

• Various intellectuals attempted to elevate fields like psychology, sociology, and economics to scientific status.

• Scholars like Wilhelm Wundt in psychology and Auguste Comte in sociology sought to apply scientific methods to their respective disciplines.

Debate Between Science and Humanities

The debate between science and humanities is explored here, focusing on whether fields like history or literature can be considered sciences.

Science vs. Humanities Debate

• Ongoing debates question whether subjects like psychology or sociology truly qualify as sciences.

• The distinction between science (STEM fields) and humanities (history, literature) remains a contentious issue today.

Hans Kelsen's Approach to Law as a Science

Hans Kelsen's perspective on law as a science is discussed here, emphasizing the need for legal studies to adopt a more scientific approach.

Legal Studies Transformation

• Hans Kelsen proposed that legal studies should mirror the scientific rigor seen in other disciplines.

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In this section, the speaker discusses the separation of theology and politics, emphasizing the need to keep them distinct from each other.

Theology and Politics Separation

• The speaker highlights that theology, such as naturalistic theology, dictates behavior but should not influence laws.

• Politics should be independent of ideologies like left or right-wing beliefs to maintain its integrity.

• Fascism's racist components were based on false biology theories of superior races, contaminating law with biased beliefs.

• Carl Schmitt, a prominent jurist in the Nazi regime, influenced legal perspectives with his Nazi ideology.

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This part delves into the controversy surrounding legal perspectives during a dangerous era marked by fascism and racial biases.

Legal Perspectives Controversy

• Carl Schmitt's influence on legal views sparked debates between different interpretations of law.

• The speaker discusses how personal backgrounds, like being Jewish in a perilous time, affected legal scholars' journeys.

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Here, the focus shifts to understanding positive law through Kelsen's theory and the concept of legal hierarchy.

Positive Law and Kelsen's Theory

• Kelsen's famous pyramid theory emphasizes that laws form a hierarchical system rather than a random collection.

• Laws are structured hierarchically from judicial decisions to international laws at the top level.

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This segment explores the essence of law validity based on subordination to higher laws rather than moral judgments.

Validity of Laws

• Law validity lies in subordination to higher laws rather than subjective moral evaluations.

Sistema Jurídico y Derecho Natural

In this section, the discussion revolves around the legal system and natural law, highlighting how legal positivism focuses on form over content in legal norms.

Legal System and Natural Law

• Legal positivism emphasizes that legal norms should be based on form rather than content. An example is given where a law stating "killing Jews is not sanctioned" can be analyzed from two perspectives: content and form.

• The concept of natural law suggests that a law's correctness depends on whether it aligns with natural principles. However, legal positivism disregards the norm's content, focusing solely on its subordination to a higher rule.

• According to Kelsen, the validity of a norm lies in its subordination to a superior rule. An example illustrates how different laws can be considered appropriate or inappropriate based on their alignment with higher-ranking norms.

Subordination of Norms

This part delves into the hierarchy of norms within a legal system and how adherence to superior rules determines the validity of lower-level laws.

Subordination of Norms

• If a lower-level norm contradicts a higher-ranking one, it is deemed inappropriate not because it is inherently wrong but because it lacks subordination. The importance of aligning norms with superior rules for formal adequacy is emphasized.

• Laws must conform to higher-ranking norms for formal adequacy. Failure to do so renders them inadequate, not due to moral judgment but because they lack subordination to superior rules.

Fundamental Legal Principles

This segment explores fundamental legal principles derived from higher-order norms and discusses their theological underpinnings in shaping legal systems.

Fundamental Legal Principles

• Fundamental legal principles are often rooted in theology but remain outside positive law. Jurists primarily rely on positive laws for guidance, emphasizing adherence to existing legal norms rather than theological considerations.

Critique of Legal Positivism

Here, there is an examination of potential issues with legal positivism concerning its focus on positive laws without considering moral or ethical dimensions.

Critique of Legal Positivism

• Legal positivism's exclusive emphasis on positive laws raises concerns about justifying morally questionable actions within a coherent legal framework. The example highlights how altering foundational principles can lead to ethically problematic outcomes.