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.

Les discours du juge et de la doctrine sont traditionnellement représentés, depuis Kelsen, par l’image d’une césure interprétative. Celle-ci signifie qu’il y aurait deux sphères interprétatives : celle de l’interprétation normative émise par le juge et celle de l’interprétation descriptive prononcée par la doctrine. En proposant un réexamen, au croisement de la théorie du droit et du droit constitutionnel, cette recherche invite à déterminer la césure interprétative, puis à la dépasser. Le phénomène constitutionnel français semble en renforcer l’essence : la brièveté des décisions de justice, l’absence de rapporteur public et la place incertaine des professeurs de droit au Conseil constitutionnel favorisent la fracture entre les mondes de la cognition et de la normativité. Cette thèse cherche à démontrer que la césure apparaît désormais déstabilisée par une nouvelle définition de la normativité juridique. Cette déstabilisation de la césure permet de réfléchir à son dépassement à travers une rénovation de la justice constitutionnelle et la consécration d’une normativité doctrinale ; un nouveau concept émerge, celui de « pending law ». Une requalification voit le jour et aboutit à la communauté des interprètes du droit. Cette représentation alternative doit être réinvestie afin de comprendre l’existence d'un dialogue entre le juge et la doctrine, mais aussi la nature dialogique du discours juridique / Since Hans Kelsen, the discourse between judge and doctrine is usually depicted as subject to a scission between these two actors. There should thus be two interpretative spheres out of which the interpretation issued by the judge and the interpretation issued by the doctrine. The aim of the current thesis, present at the junction between the “theorie du droit” and the french constitutional law, is to redefine this interpretative scission and to even go beyond by proposing new sets of rules to explore it. The french constitutional experience enables strengthening the reality of this scission. Short motivations in court decisions, absence of “rapporteur public” and uncertainty of the impact of the constitutional law professors in the french constitutional Council are factors disclosing the existence of this previously mentioned scission between cognition and normativity. However the determination of this scission is impacted as well by a new definition of the legal normativity, being the reason of our willingness in this thesis to go beyond the initial apparent distinction, to propose a redrafting of the constitutional justice structure and to propose the introduction of a new concept, the “pending law”. The above mentioned redrafting and our new concept proposal aim at re-qualifying this scission into a community of jurists which their actor are belonging to notwithstanding their conscience to be part of it. Furthermore, this thesis reflects the existence of the discussion between the judge and the french doctrine but as well the real nature of this discussion

<p>The question of whether there is soft law in international law has been as much the subject of contemporary debate as whether or not there is private legal authority in the international society. The legal boundaries seem to be blurred by the process of globalisation and the recent shift in international law. The traditional definition of international law has been outdated as new forms of treaties has introduced new subject of law to the judicial arena. At the same time a supplementary map of law has been added to the cartography of international law, soft law. These correlating processes have comprehensive political and legal consequences at both the international and national levels. This essay examines and identifies soft law from a legal-political perspective and locates and explores private forms of legal authority on the map of contemporary international law. In respect to theory, it accounts for an interdisciplinary approach involving issues of both international law and international relations. In the process this study examines issues regarding the relative legal normativity and the blurring of legal authority in international law. The focus is on the legal character, the constitutive practices and the legal and political influence of soft law. It discusses the influence and power exerted by soft law over state actors in the international system and at the national level. The essay finds that soft law is of substantial relevance in the international ambit. To some extent a limited normative force of certain norms is recognized in soft law even though it is conceded that those norms would not be enforceable by an international court or other international organ. To say that it does not exist because it is not of the enforceable variety, might blind students of international law to another dimension of the landscape of international practice. Soft law does not translate to soft obligations in the reality of international society, and it seems to be some confusion surrounding the obligations conceived by it. The research here presented suggests that its political and legal power is substantial. The researched examples do not display any real private legal authority in soft law. This is because soft law is found to be a separate phenomenon from international law proper. However, soft law’s impact on national governments combined with the wider acceptance of the presence of private actors in the creation of soft law suggests that private power is noteworthy in comparison. In one of the studied examples, the soft law is concluded by private business representatives solely, but in requiring the status of soft law it is dependant on the recognition of the international and national legal bodies.</p>

The question of whether there is soft law in international law has been as much the subject of contemporary debate as whether or not there is private legal authority in the international society. The legal boundaries seem to be blurred by the process of globalisation and the recent shift in international law. The traditional definition of international law has been outdated as new forms of treaties has introduced new subject of law to the judicial arena. At the same time a supplementary map of law has been added to the cartography of international law, soft law. These correlating processes have comprehensive political and legal consequences at both the international and national levels. This essay examines and identifies soft law from a legal-political perspective and locates and explores private forms of legal authority on the map of contemporary international law. In respect to theory, it accounts for an interdisciplinary approach involving issues of both international law and international relations. In the process this study examines issues regarding the relative legal normativity and the blurring of legal authority in international law. The focus is on the legal character, the constitutive practices and the legal and political influence of soft law. It discusses the influence and power exerted by soft law over state actors in the international system and at the national level. The essay finds that soft law is of substantial relevance in the international ambit. To some extent a limited normative force of certain norms is recognized in soft law even though it is conceded that those norms would not be enforceable by an international court or other international organ. To say that it does not exist because it is not of the enforceable variety, might blind students of international law to another dimension of the landscape of international practice. Soft law does not translate to soft obligations in the reality of international society, and it seems to be some confusion surrounding the obligations conceived by it. The research here presented suggests that its political and legal power is substantial. The researched examples do not display any real private legal authority in soft law. This is because soft law is found to be a separate phenomenon from international law proper. However, soft law’s impact on national governments combined with the wider acceptance of the presence of private actors in the creation of soft law suggests that private power is noteworthy in comparison. In one of the studied examples, the soft law is concluded by private business representatives solely, but in requiring the status of soft law it is dependant on the recognition of the international and national legal bodies.