F.A. Hayek against Hans Kelsen

legal norm, state and freedom

Abstract

This article aims to present F. A. Hayek's criticisms of Hans Kelsen's legal positivism. Hayekian criticisms refer to the relationship established by Kelsen between law and state and law and justice. For this, Kelsen's conceptions of legal norm and Rule of Law are presented and Hayekian criticisms of Kelsenian pure theory are exposed. The adopted methodology is exploratory through literature review and the research approach is qualitative. It is concluded that, in Hayek's reading, the formalist judgment of the validity of the norm and the identification of the State with the law, as proposed by the positivist Kelsenian model, form a theoretical conception capable of threatening individual freedom because the power of the State becomes unlimited in the production of legal norms.