INTERPRETATION OF LAW AND THE KELSENIAN INTERPRETATIVE FRAMEWORK

Abstract

The article explores Kelsen's theory of legal interpretation as outlined in Hans Kelsen's Pure Theory of Law (1881-1973), with emphasis on the 1934 and 1960 editions. Initially, it is highlighted that the interpretation of law, according to Kelsen, is a mental process that occurs in the application and creation of law, distinguishing itself into "authentic interpretation" and "non-authentic". The first is binding and carried out by state agencies, while the second is merely descriptive, made by private individuals and legal scholars. The work emphasizes the metaphor of the "legal framework", which illustrates the margin of discretion existing in the act of applying the law, in addition to discussing the criticisms of the possible decisionist tendency of Kelsen's theory. Finally, the institutional thesis is considered as a perspective that attenuates the criticism of decisionism, by suggesting that decisions are influenced by a complex normative and procedural structure.