H. L. A. Hart vs. Hans Kelsen

Attribute	H. L. A. Hart	Hans Kelsen
Legal Positivism	Yes	Yes
Separation Thesis	Yes	Yes
Basic Norm	No	Yes
Normativity	Primary and Secondary Rules	Grundnorm
Legal Validity	Rule of Recognition	Grundnorm

Background

H. L. A. Hart and Hans Kelsen are two prominent legal theorists who have made significant contributions to the field of jurisprudence. Both Hart and Kelsen have had a lasting impact on legal philosophy, with their theories continuing to be studied and debated by scholars around the world.

Legal Positivism

One of the key similarities between Hart and Kelsen is their adherence to legal positivism. Legal positivism is the theory that the validity of law is not dependent on its moral content, but rather on its source or origin. Both Hart and Kelsen believed that law is a social construct that is created by human beings, and that its validity is determined by legal rules and procedures.

Concept of Law

While both Hart and Kelsen were legal positivists, they had different views on the nature of law. Hart's concept of law focused on the idea of a "rule of recognition," which is a social rule that determines what counts as law in a particular legal system. Kelsen, on the other hand, developed the idea of a "basic norm," which is a hypothetical norm that serves as the foundation for all other legal norms in a legal system.

Legal Normativity

Another key difference between Hart and Kelsen is their views on legal normativity. Hart argued that legal norms have an internal aspect, which is their validity as law, and an external aspect, which is their moral content. Kelsen, on the other hand, believed that legal norms are purely normative and do not have any moral content. For Kelsen, the validity of law is determined by its formal characteristics, such as its source and form.

Role of Judges

Both Hart and Kelsen also had differing views on the role of judges in interpreting and applying the law. Hart believed that judges have a degree of discretion in interpreting legal rules, and that they should use their judgment to apply the law in a way that is consistent with the principles underlying the legal system. Kelsen, on the other hand, argued that judges should apply the law mechanically, without any room for interpretation or discretion.

Legal Systems

One area where Hart and Kelsen diverged significantly was in their views on legal systems. Hart's theory of law focused on the idea of a legal system as a complex network of rules and principles that guide human behavior. Kelsen, on the other hand, developed the idea of a "pure theory of law," which sought to analyze the nature of law in its purest form, without reference to any particular legal system.

Conclusion

In conclusion, while H. L. A. Hart and Hans Kelsen both made significant contributions to legal theory, they had differing views on key aspects of jurisprudence. Hart's focus on the rule of recognition and the role of judges in interpreting the law contrasted with Kelsen's emphasis on the basic norm and the mechanical application of legal norms. Despite these differences, both Hart and Kelsen have left a lasting legacy in the field of legal philosophy, and their theories continue to be studied and debated by scholars today.