DIREITO E PODER EM KELSEN

Abstract

In this article we seek to combine the two main aspects of Hans Kelsen’s work, the juridical and the political, with the goal of reconstructing the role played by the concept of power in his thought. These dimensions have been studied individually by the vast majority of literature, with the exception of some seminal works like Bobbio’s (2013), Dyzenhaus’s (1997) and Vinx’s (2007). However, we consider that this separation prevents us from identifying one of Kelsen’s main concerns: the safety of the citizens. Thus, in our interpretation, there is a relation between the kelsenian jurisprudential theory, depurated from empirical social reality and from any moral obligations, and his political conception of the democratic rule of law, mainly in what concerns the application of his Pure Theory of Law in the defence of liberal democracy. We thus consider that this dynamic embodies a well-defined conception of power that justifies, primarily, Kelsen’s depersonalization of law and the introduction of the basic norm in his Pure Theory; and, consequently, his defence of a democratic regime. We argue, as well, that Kelsen’s positioning, both juridically and politically, strives for eliminating any room for the arbitrary use of power. In this sense, we conclude that his posture comes, not from concretizing certain ethical-political contents, but from the option in favour of guaranteeing the juridical, political, and individual safety of the citizens, through juridical and political automatisms, that allow the latter to act while predicting the consequences of their juridical actions.