Kelsen, the new inverted pyramid and the classics of constitutional law

Abstract

The present study overhauls Hans Kelsen’s thesis of the traditional normative pyramid, in order to accommodate the most outstanding doctrinal contributions of the last century to it. For the purpose, the Essay proceeds as follows: (i) the shortcomings of the first version of the pyramid, found in Kelsen’s Pure Theory of Law and on Adolf Merkl’s contributions, are detected; (ii) new key concepts of the Aristotelian-Thomistic metaphysics are introduced, this will allow us to upgrade the theory of the staggered legal system; (iii) unity and order of the legal system are briefly analyzed; (iv) a staggered legal pyramid is redesigned, with a gradual reduction of the juridical space; and finally, (v) the theories of Kelsen, Merkl, and several of the most influential doctrinarians of law (e.g., Jhering, Radbruch, Rorty, Ross, Kelsen, Holmes, Hägerström, Olivecrona, Hart, MacCormick, Dworkin, among others) are tested, to see if their ideas fit in the new theory. This upgrade of the traditional theory arises from a significant shift in the philosophical basis. The first pyramid was elaborated by Kelsen and Merkl under the tenets of neo-Kantian metaphysics. On the other hand, the methodology and the basic ideas behind this study are those of the Aristotelian-Thomistic metaphysics. It moves from an idealistic metaphysics to a traditional realistic metaphysics, so neglected in recent centuries. The inverted pyramid theory, formulated here, is the product of many previous works. Many of them have been published in different international journals.