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Pure theory's deconstruction
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1973-2937
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European journal of legal studies, 2021, Vol. 13, No. 1, pp. 155-186
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CUFAR, Kristina, Pure theory’s deconstruction, European journal of legal studies, 2021, Vol. 13, No. 1, pp. 155-186 - https://hdl.handle.net/1814/69736
Abstract
In this article, I engage with the deconstructive strategy at play in Hans Kelsen's highly influential Pure Theory of Law to highlight both its iconoclasm and its limitations. Pure theory is a critical undertaking, reflecting a commitment to confronting the ideological aspects of law and legal theory. Nevertheless, pure theory's critical edge remains mostly overlooked both in mainstream interpretations as well as in critical legal thought. To offer an alternative reading, I first flesh out pure theory's radical and efficient critique of the political prejudice ingrained in traditional legal theory by utilizing Derrida's framework of deconstruction. Secondly, I turn Kelsen's deconstructive tools against pure theory itself. Kelsen's insistence on the separation of law and violence results in an effective declaration of the superiority of the normative over the factual, constructing a self-deconstructive hierarchy. Rather than a defeat, this is an ironic affirmation of Kelsen's critical stance that refuses to validate any ideology.
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Published online: 09 June 2021