A teoria da estrutura hipotética das normas jurídicas de Kelsen - características, evolução e balanço de sua importância

Abstract

This essay handles the evolution of the theory of the structure of legal norms developed by Kelsen. It approaches Kelsen’s main ideas about the concepts of legal norm and legal proposition, as well as about the hypothetical structure of the authentic legal norms, which are the ones that connect coercion acts to material facts – norms that Kelsen coined as “primary norms”. The consequences of such approach – as the characterization of norms that formulate legal duties (“secondary norms” in Kelsen’s parlance) as superfluous norms and Kelsen’s criticism on the concept and on legal theories about subjective right – are also briefly discussed. Afterwards a comparison between Kelsen’s theory and Hart’s distinction of primary and secondary rules is made. In the end, a critical analysis about the importance of Kelsen’s theory of the hypothetical structure of the legal norms is presented.