Kelsen y la unidad del Estado/Derecho: de las premisas kantianas a la ficción imaginada

Abstract

The unity of law in the work of Hans Kelsen, from his first Kantian methodology to his metamorphosis through the abandoning of the logical principles in positive law, no longer seems so certain. In order to test this thesis the basic elements of his legal science are presented: on the one hand, the neo-Kantian premises; on the other, a positivist description of law. The difficult relationship between these two elements are finally unsustainable and all building of the unity Law = State eventually collapse. The tiered system of norms (super-ordinate and sub-ordinate norms, whose highest level is the Constitution in positive-legal sense), with the Grundnorm as Constitution in the transcendental-logical sense that validates the whole unity of law (hierarchical, coherent and total order), is not rejected, but changes its from logical hypothesis (presupposed norm) to imagined fiction (not only contradicting reality but also within itself). The essential function of the Basic Norm is still the grounding of the validity of all the norms forming the juridical order, but it changes its nature and becomes the fiction they need, both jurists and addressees of the rules, to interpret – within a by and large effective coercive system– the subjective commands as if they were objective valid norms. And when the positive norms can only be founded by acts of will of the individuals who create them, the unification between state order and international law, together with the new reconstruction of democracy – from the participation of all the citizens who have been submitted to a positive-legal system– will be the new lines to reformulate a juridical science that no longer can neutralize the power, nor confuse the mere legality with the legitimacy of the system.