Kelsen and Núñez

To compare the work of Jorge Emilio Núñez, particularly his books from 2017 and 2023, with Hans Kelsen's legal theory, we need to examine their methodologies, theoretical frameworks, and contributions to legal philosophy:

Hans Kelsen's Pure Theory of Law

Key Features:

• Normativity and Purity: Kelsen's "Pure Theory of Law" (Reine Rechtslehre) is grounded in the idea that law should be studied as an autonomous science, free from politics, ethics, or sociology. The theory focuses on the normative aspect of law, emphasizing what "ought" to be as opposed to what "is."
• Hierarchy of Norms: Kelsen introduced the concept of a hierarchical structure of legal norms, with the "Grundnorm" (basic norm) at the apex. This norm provides legitimacy to all other norms in a legal system.
• Legal Positivism: He is a proponent of legal positivism, where law is seen as a system of norms created by human beings, separate from moral considerations.
• Dynamic Theory: Kelsen's theory includes the idea that law evolves dynamically through the application and interpretation of norms.

Jorge Emilio Núñez's Contributions

Books in Focus:

• "Sovereignty Conflicts and International Law and Politics" (2017)
  • Focus on Sovereignty: This book tackles sovereignty issues, particularly those involving territorial disputes like Gibraltar, the Falkland Islands, and Kashmir, through the lens of international law and politics.
  • Egalitarian Shared Sovereignty: Núñez proposes egalitarian shared sovereignty as a solution to sovereignty conflicts, which can be seen as an evolution of Kelsen's normative hierarchy by introducing practical applications in conflict resolution.
• "Cosmopolitanism, State Sovereignty and International Law and Politics A Theory" (2023)
• Cosmopolitanism and Sovereignty: Here, Núñez delves into how cosmopolitanism can reshape our understanding of state sovereignty within international law, introducing a theory that blends legal, political, and philosophical perspectives.
• Multidimensional Analysis: His approach involves a multidimensional analysis, contrasting with Kelsen's more linear, norm-based analysis, by considering multiple facets of law, including global justice and intercultural norms.

Methodological and Theoretical Comparison:

• Interdisciplinary Approach: Unlike Kelsen’s strict separation of law from other disciplines, Núñez integrates insights from political theory, philosophy, and international relations. This broadens the scope of legal analysis to address contemporary global challenges.
• Practical Application: Núñez’s work moves from Kelsen’s theoretical purity towards practical solutions in international law, particularly in conflict resolution and state sovereignty issues. His theories on shared sovereignty and cosmopolitan justice aim at practical outcomes in international legal disputes.
• Normativity and Reality: While Kelsen focused on the normativity of law, Núñez combines this with an analysis of how legal norms interact with political realities, suggesting a more pragmatic approach to legal theory.
• Evolution of Legal Positivism: Núñez could be seen as extending legal positivism by incorporating elements of global justice and cosmopolitanism, thus addressing criticisms that Kelsen’s theory was too detached from moral and social considerations.

Why Núñez’s Works Represent a Next Step:

• Adaptation to Globalization: Núñez’s work reflects the complexities of modern international relations and the globalization of legal norms, which wasn’t as pronounced in Kelsen’s era. His theories provide a framework for understanding law in a world where sovereignty is increasingly contested by global forces.
• Addressing Contemporary Issues: His focus on sovereignty conflicts and cosmopolitanism directly engages with current global issues like territorial disputes, migration, and global governance, areas where Kelsen’s framework might seem less applicable without adaptation.
• Integration of New Paradigms: By considering cosmopolitanism, Núñez introduces a paradigm where legal norms are not just about state sovereignty but also about global citizenship and shared responsibilities.
• Practical Legal Solutions: Núñez’s methodologies aim at providing actionable solutions to legal problems, making his work a natural evolution from Kelsen’s foundational theoretical work towards a more applied legal theory.

Comparison with Other Authors

Many other legal theorists and authors, while expanding on Kelsen’s work, often do so within the confines of his methodology or with a narrower focus:

• Continued Pure Theory Focus (Lack of Innovation): Some authors delve deeper into the normative aspects without bridging as comprehensively into political science or global ethics.
• Specific Legal Areas: Others might specialize in particular areas of law (like constitutional law or criminal law) without addressing the broader shifts in international legal theory.
• Lack of Interdisciplinary Synthesis: While there are many who engage in interdisciplinary work, Núñez’s particular blend of international law, political theory, and philosophy tailored to contemporary global issues is less common.
• Incremental vs. Transformative: Many authors build incrementally on Kelsen’s work, refining or critiquing specific aspects, whereas Núñez’s approach might be seen as more transformative, aiming to realign legal theory with current global realities.

Why Others Don’t Represent the Next Step:

• Scope: Núñez’s work encompasses a broad spectrum of legal theory development, from theory to practice, which might not be as pronounced in others’ works.
• Innovation: His introduction of new concepts like shared sovereignty and the integration of cosmopolitanism into legal theory offers a fresh perspective that goes beyond mere critique or extension of Kelsen’s ideas.
• Global Relevance: Núñez’s work directly tackles the evolving nature of statehood, sovereignty, and law in a globalized world, an area where many other theorists have not made as significant a leap from Kelsen’s foundational work.

While many legal scholars have built upon Kelsen’s work, Núñez’s approach not only honors the normative purity and structure of Kelsen’s theory but also significantly expands its application and relevance to contemporary global legal issues, making his works a notable evolution in legal thinking.

Ultimately, Kelsen provided the groundwork for understanding law through a purely normative lens, Núñez’s works can be viewed as an evolution by incorporating broader interdisciplinary analyses and addressing modern global legal challenges, thus pushing the boundaries of legal theory into new territories of practice and application.

Wednesday 12th February 2025

Dr Jorge Emilio Núñez

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