Resumen

GARCIA, Mario. Heller and Kelsen. On law and the State. Probl. anu. filos. teor. derecho [online]. 2026, n.20, e20253.  Epub 22-Jun-2026. ISSN 2448-7937.  https://doi.org/10.22201/iij.24487937e.2026.20.20253.

This paper has two core aims: one is to expose the debate Hans Kelsen and Hermann Heller held about the adequate conception of law and the state; the second is to analyze the influence both doctrines might have on the type of political regime build on them. To bring back to the present that old academic disagreement not only has a historical interest, but it also help to better understand some of the recent discussions on the social function of both institutions. With certain frequency, two different ways of conceiving the nexus between law and society get confronted. On the one hand, there is the formalistic conception, illustrated by Kelsen, for which law and the state are instruments to regulate human conduct, so they can have any content. On the other, we have the perspective, exemplified by Heller, that those instruments, in addition to be legal, must also comply with certain values, in order to be legitimate. This is the point of disagreement between Kelsen and Heller I want to stress, given its influence on our ideas about law and the state.

Palabras llave : Heller; Kelsen; law; State; formalism; ethical principles.

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