A search for an integral view of law, the state & human rights: comparing hans kelsen’s positivism, carl schmitt’s realism & otfried höffe’s rationalism

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2010

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Demiray, Mehmet Ruhi

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The primary objective of this work is to develop the (rationalist) thesis of integrity or the integral view in the realm of legal-political thought. This view consists in the elaboration of the essential-conceptual interdependency of law, the political authority (i.e. the state) and the universal moral standpoint of justice (i.e. the standpoint encapsulated by the idea of human rights in our age) in a way avoiding the shortfalls of legal-moralism illustrated by the natural-law-theories. The rationalist thesis of integrity suggests that the elements within the complex nexus of the law, the state, and justice can neither be divorced from nor be assimilated into each other. This evidently refutes the (positivist) thesis of separation which breaks off the cord between law and the state, on the one hand, and the moral standpoint of justice, on the other hand. However, the thesis of integrity equally opposes the theses of assimilation whereby either law and political authority are assimilated into morality (“the moralist-naivety”) or law and justice are assimilated into brute political force (“the realist-cynicism”). In brief, the integral view gives each element its due in the nexus of law, the state and the universal moral idea of justice (i.e. human rights). In this work, this view is strived to be deduced from a comparative critical-examination of three legal-political theories, each of which is taken as representing a particular approach beyond legal-moralism. These are Hans Kelsen’s Pure-Theory-of-Law representing the positivist approach, Carl Schmitt’s Concrete-Order-Thinking representing the realist approach, and Otfried Höffe’s Ethical-Philosophy-of-Law-and-the-State representing the rationalist approach.

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Political science.

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http://etd.lib.metu.edu.tr/upload/12612102/index.pdf
https://hdl.handle.net/11511/19545

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Graduate School of Social Sciences, Thesis

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Citation Formats

M. R. Demiray, “A search for an integral view of law, the state & human rights: comparing hans kelsen’s positivism, carl schmitt’s realism & otfried höffe’s rationalism,” Ph.D. - Doctoral Program, Middle East Technical University, 2010.