A Bottom-Up Perspective on the Pure Theory of Law
The Frame Doctrine as Legal Methodology and Argumentation Theory
Abstract
Even according to many of its adepts, the Pure Theory of Law lacks crucial guidance in matters of legal interpretation. If true, this is unsurprising still. For a general theory of law can only ever describe general structures and mechanisms of “the law”. How its interpretation is done in legal practice, however, is not decided in the abstract but in the respective context of a concrete legal order. This insight does in fact lay at the centre of Viennese legal positivism, too. This paper aims to reconcile the characteristic generality of the Pure Theory with its focus on the rules of concrete legal orders by explicating the influence that particular positive norms exert on their own interpretation as well as on the interpretation of a legal order as a whole. To that end, the hierarchical structure of legal systems is being reconstructed “from the bottom up.” Since practical legal disputes problematise the lowest-ranking norms first, legal methodology either provides a technique of securing results towards higher level norms or it helps to reformulate unresolvable lower level interpretive issues in terms of higher-ranking norms. In that way, legal methods address the very uncertainties produced in the first place by the Kelsenian image of “law as a frame”.
Keywords
pure theory of law | Hans Kelsen | Adolf Merkl | law as a frame | cognition and decision | legal argumentation | legal interpretation | interdisciplinarity | Reine Rechtslehre | Hans Kelsen | Adolf Merkl | Recht als Rahmen | Erkenntnis und Entscheidung | juristische Argumentation | Rechtsmethodik | Interdisziplinarität