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Extra resources for Legal Theory

Example text

See p. ) Finally, surely nobody would doubt that an absolute conviction that you are right is no guarantee that you are so. As Oliver Wendell Holmes puts it, ‘certitude is not the test of certainty. We have been cocksure of many things that were not so’. (Natural Law (1918) 32 Harv LR 40 at p. ) Doubting the possibility of certainty anyway, he continues: ‘I do not see any rational ground... for being dissatisfied unless we are assured... ’ (Op. , p. 8 Why Study Legal Theory? The discussion of the nature of legal theory which you have just read, and any number of similar discussions which you may read elsewhere, will leave many students saying ‘So what?

In any event, it is the social origins and organization of the sanctions, rather than their effectiveness, which concerns Kelsen. On the evidence of this extract, you may be immediately tempted to accuse Kelsen of narrowness of vision, since his emphasis on coercion and sanctions may appear to limit what he has to say to only that part of the law which deals with criminal matters, but it is apparent from the whole of the article that Kelsen intends these key words to have wider meanings, so that, for example, the possibility of a defendant’s property being seized in order to provide the money to satisfy a judgment for damages for breach of contract would be a coercive sanction within his scheme of things.

They may, of course, be more effective than legal sanctions, but only among believers. In any event, it is the social origins and organization of the sanctions, rather than their effectiveness, which concerns Kelsen. On the evidence of this extract, you may be immediately tempted to accuse Kelsen of narrowness of vision, since his emphasis on coercion and sanctions may appear to limit what he has to say to only that part of the law which deals with criminal matters, but it is apparent from the whole of the article that Kelsen intends these key words to have wider meanings, so that, for example, the possibility of a defendant’s property being seized in order to provide the money to satisfy a judgment for damages for breach of contract would be a coercive sanction within his scheme of things.

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