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Hans Kelsen and the Pure Theory of Law

Hans Kelsen (1881-1973) stands as an essential figure in legal theory, primarily associated with his Pure Theory of Law(Reine Rechtslehre), first published in 1934. The premise of the “pure theory of law” asserts that law constitutes an autonomous normative order, distinct in nature from morality, politics, religion, or economics. For Kelsen, law comprises a structured set of norms that establish a system of obligatory human behavior, sanctioned by the state. Based on this premise, Kelsen proposes a hierarchy of legal norms, highlighting the grundnorm or “basic norm” (also known as the “norm of norms”), which serves as the foundational source of validity for all other legal norms. This basic norm is not empirical but rather a theoretical construct essential for justifying the validity of all other norms within the legal system. It is, therefore, hypothetical and cannot be modified or repealed by other norms. Continuar a ler “Hans Kelsen and the Pure Theory of Law”

Hans Kelsen e a Teoria Pura do Direito

Hans Kelsen (1881-1973) constitui-se como um pensador absolutamente central no Direito, associado, sobretudo, à sua Teoria Pura do Direito (Reine Rechtslehre), publicada em 1934. O primado da “teoria pura do direito” pressupõe que o direito constitui uma ordem normativa autónoma que detém distinta natureza da moral, da política, da religião ou da economia. Para Kelsen, o direito compreende uma estrutura de normas que estabelece um sistema de comportamento humano obrigatório e sancionado pelo Estado. A partir desse postulado, Kelsen propõe uma hierarquia das normas jurídicas, destacando a grundnorm, ou normal fundamental (também “norma de normas”), que opera como fonte de validade de todas as demais normas jurídicas. Esta norma não é uma norma empírica, mas antes uma construção teórica necessária para justificar a validade das demais normas do sistema jurídico, sendo, portanto, hipotética, e, por tal, não podendo ser alterada ou revogada por outras normas. Continuar a ler “Hans Kelsen e a Teoria Pura do Direito”

The Kevin Behrens’ case

The German player Kevin Behrens was removed from Wolfsburg’s squad after refusing to sign a Wolves jersey made for a charitable campaign featuring rainbow colors, stating, “I won’t sign that gay sh*t.” Opinions on the matter are divided, pitting two dimensions against each other: the right to conscientious objection and the club’s decision to adopt measures for social justice. However, the issue only arose because the player’s refusal was publicized, turning it into a public matter.

The public exposure of his words triggered a storm of reactions from public opinion, pressuring the club to act swiftly. This type of situation highlights the tension between players’ individual freedom and the growing expectations that athletes and sports institutions take a clear stance on social issues. By choosing to suspend Behrens, Wolfsburg seemed intent on sending a message that attitudes or statements considered offensive or contrary to inclusion values would not be tolerated, even if stemming from personal beliefs.

What stands out in this case, however, is that if Behrens had simply refused to sign the jersey without making an explicit or offensive comment, the outcome might have been very different. This raises the question of to what extent players are responsible for their words in environments that should, in principle, be private, and how the dissemination of such words impacts their careers.

The issue of conscientious objection—the right to refuse to perform certain acts based on personal or religious beliefs—is widely recognized in many areas. However, in the sports world, particularly within organizations that promote values like diversity and inclusion, a delicate balance must be maintained. Behrens, by expressing his beliefs in those terms, turned a personal act of refusal into a controversy with broader implications, effectively politicizing the matter.

Once made public, the incident transcends the scope of a conflict between the club and the player and becomes a battleground for broader societal debates. Behrens’ defenders argue that he is being canceled, with his freedom of expression curtailed, due to the rise of “wokeness.” Critics, on the other hand, emphasize the need for public figures, especially athletes from major clubs, to be mindful of the image they project and the messages they convey, particularly on sensitive topics like LGBTQIA+ inclusion.

This episode also underscores the need for clear policies within clubs on how to address issues of conscientious objection and ensure that disagreements are resolved without escalating into public crises.