The pure theory of law is a positivist legal theory put forward by Hans Kelsen. Recently there have been two attempts to understand democracy as a source for the normativity that the pure theory assigns to law. Lars Vinx seeks to understand the pure theory as a theory of political legitimacy, in which the normativity that the pure theory assigns to the laws of a state depends on the state’s adoption of certain legitimacy enhancing features, including being democratic. Uta Bindreiter argues that, in the case of European Community law, an additional criterion of democracy must be added to the criteria that the pure theory normally requires of legal systems before the pure theory can presuppose the normativity of European Community law. This thesis will argue that neither of these two accounts succeeds in demonstrating that the normativity of the pure theory can be understood to depend on democracy.

The pure theory of law is a positivist legal theory put forward by Hans Kelsen. Recently there have been two attempts to understand democracy as a source for the normativity that the pure theory assigns to law. Lars Vinx seeks to understand the pure theory as a theory of political legitimacy, in which the normativity that the pure theory assigns to the laws of a state depends on the state’s adoption of certain legitimacy enhancing features, including being democratic. Uta Bindreiter argues that, in the case of European Community law, an additional criterion of democracy must be added to the criteria that the pure theory normally requires of legal systems before the pure theory can presuppose the normativity of European Community law. This thesis will argue that neither of these two accounts succeeds in demonstrating that the normativity of the pure theory can be understood to depend on democracy.