THE INTEGRAL VIEW OF LAW, THE STATE, and HUMAN RIGHTS: COMPARING HANS KELSEN'S POSITIVISM, CARL SCHMITT'S REALISM, and OTFRIED HÖFFE'S RATIONALISM

This work elaborates the rationalist thesis of integrity, which suggests that the concepts of 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 also opposes the theses of assimilation which either assimilate law and political authority into morality (the moralist naivety), or,reversely, reduce law and justice 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 elicited through a comparative critical examination of three theories, each of which is taken as representing a particular approach beyond legal-moralism. These are Hans Kelsen's legal-positivism, Carl Schmitt's realism, and Otfried Höffe's Kantian rationalism. Eventually, the book is intended to be beneficial to those who are interested in political and legal philosophy.