itself seems to constitute self-sufficient totality capable of solving the problems of society in a strictly juristic as well as apolitical manner). On the other hand, we have the idea of Hans Kelsen (18811973), according to which, the only manner that valid legal conclusions can be arrived at is through deductions from statute law (which, moreover, appears to constitute the whole of the positive law).494 Kelsen’s disregard for the ideas of equity, reasonableness, as well as his disregard for ethical and sociological considerations when ascertaining the law, is based upon the idea of their lack of compliance with Kelsen’s basic norm, Grundnorm, which according to him is the only definition and source of positive law, whereby they cannot express positive law.495 Through Kelsen’s closed definition of law the usual practices and methods used to interpret and supplement the law must be rejected, because they do not express that which is given in the law and thereby will be of no help to us when ascertaining valid law.496 However, a closer analysis shows that Kelsen’s theory is in clear contradiction to the doctrine of the sources of law, because this doctrine allows the meaning of positive law to be determined by jurisprudence through its use of a multitude of accepted methods that are applied to the sources of law, namely, legislation and the practices of the courts (which jurisprudence also understands as being a determination of the law considered to express valid law).497 Since the jurisprudential determination of law invariably goes beyond the statute, which is always inadequate, and determines the law by supplementing the statute with equity, then Kelsen’s conclusion is that the results of jurisprudence, the doctrine (in some aspects built on the ideas of justice, ethico-political postulates, and sociologicoa ca l l f o r s c i e n t i f i c p u r i t y 535 494 Hägerström,“Kelsen,”passim. However, custom is also accorded the status of law in Kelsen’s system, see Kaufmann, Rechtsphilosophie, pp. 151-155. 495 Hägerström, “Kelsen,” pp. 36-37 and 93-95. 496 Hägerström, “Kelsen,” pp. 36-37. 497 Hägerström, “Kelsen,” p. 94.
RkJQdWJsaXNoZXIy MjYyNDk=