REVIEWS
| Published date | 01 April 1946 |
| DOI | http://doi.org/10.1111/j.1468-2230.1946.tb01000.x |
| Date | 01 April 1946 |
88
REVIE’WS
THE
PURE
THEORY
OF
LAW.
By WILLIAM
EBENSTEIN,
Associate
Professor of Political Science, University of Wisconsin.
(Madison, Wisconsin
:
University of Wisconsin Press.
1945.
xii and
211
pp.
$2.50.)
OF
the many divergent movements which the present century
has seen in the realm of legal theory probably the most
important and certainly the most vehemently debated is the
doctrine of Hans Kelsen and his followers (the Vienna School),
which bears the apt descriytivc title of the Pure Theory of
Law-Die Reine
Rechtslehre.
As
Professor Ebenstein remarks,
‘
A school of legal thought that can cause intellectual storms
from Belgrade to Tokyo has achieved no mean feat
’.
Even in
England and Amcrica it has not bcen ignored
;
the Introduction
to the present volume records some sixteen works
in
English,
mostly articles in periodicals, in which it has becn expounded
or
discussed. (The author has, however, apparently missed the
chapter by
R.
T.
E.
Latham in Vol.
I
of the Suroey
of
British
Commonwealth
Agairs,
O.U.P.,
1937,
and also
a
paper by the
present reviewer in
Grundfragen der Rcchtsaugassung,
Munich,
1938.)
But on the whole it has received
‘
comparatively little
attention
’
in the common law countries. A glance
at
the first
chapter of the present volume may help
to
explain this neglect.
The legal philosopher,
as
he exists on the Continent, is
a
rare
creature in England; the pure lawyer,
as
distinct from the
Pure Theorist of Law, has seldom enjoyed an education which
comprises a study of Kant’s
Critique
of
Pure Reason
and
is
impatient
of
legal writings which cannot be comfortably
assimilated without such preliminary philosophical exercises.
Yet, if the English lawyer could overcome this initial
difficulty, he would probably find that of all Continental legal
philosophies the Pure Theory
of
Law fitted most congenially to
his own traditional way of thinking. This
is
perhaps another
reason why it has received
‘
comparatively little attention
’
from him; he finds in its practical and political implications
little or nothing to shock his cherished beliefs. Since
1688
he
has never doubted the maxim that
Res
debet
esse
sub
lep;
even if he complains
of
modern bureaucratic tyranny,
wliai
.
is complaining
of
is
a.
tyranny formally created by law.
7.
.$
Continental doctrine that the Administration can be above
the
law,
that the administrative act
‘
carries its own validity
’,
is
strange and repulsive to him, and
its
denial by the Pure Theory
of Law awakens in him only the mild approval of one reading
a
self-evident proposition. Even if, like Salmond, he pays lip-
service to the view that the State is the creator of the law, he
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