An approach to the relationship between State and Law from the German tradition of State theory: Georg Jellinek, Hans Kelsen, and Hermann Heller
This article presents an approach to the relationship between the State and law based on an analysis of the German tradition of State theory, particularly focusing on three of its most celebrated exponents: Georg Jellinek, Hans Kelsen, and Hermann Heller. We focus on two aspects of this relationship...
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| Formato: | Artículo revista |
| Lenguaje: | Español |
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EDUCC - Editorial de la Universidad Católica de Córdoba
2024
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| Acceso en línea: | https://revistas.bibdigital.uccor.edu.ar/index.php/SP/article/view/5590 |
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| Sumario: | This article presents an approach to the relationship between the State and law based on an analysis of the German tradition of State theory, particularly focusing on three of its most celebrated exponents: Georg Jellinek, Hans Kelsen, and Hermann Heller. We focus on two aspects of this relationship: the legal limits of the State and its moral justification through an appeal to a supra-legal concept of law. The exposition is divided into three parts, each dedicated to one of these theorists.
In the first part, we address Jellinek's theory of the two faces of the State, according to which the State is, on the one hand, a social construction and, on the other, a legal institution. The corollary of this theory is the doctrine of the State's self-obligation to the law. We then introduce Kelsen's perspective, which rejects the idea that the State is originally a social phenomenon and asserts that it is, in fact, synonymous with the legal order, thereby eliminating the question of the legal limits of the State. The final section is dedicated to Heller, who challenges the Kelsenian identification of the State with law, but proposes, unlike Jellinek, that the State is already normatively limited at its inception. Therefore, the focus of interest shifts to the question of the moral justification of the State. Finally, we summarize our discussion and offer some conclusions. |
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