Between holism and realism: H. Kelsen’s two theories of legal conflicts

H. Kelsen’s pure theory of law, which emerged as a key reference point for the development of modern legal positivism in the 20th century, has had a profound impact on jurisprudence and philosophical theory of norms. A significant aspect of Kelsen’s theory, particularly his theory of normative conflicts, underwent substantial evolution throughout his career. However, domestic legal literature has yet to explore Kelsen’s theory of normative conflicts in depth, and his later, realist version remains largely unexamined. The purpose of this study is to reconstruct the two primary theories of normative conflicts developed by Kelsen at different stages of his work, as well as his theory of hierarchical conflicts. Additionally, we aim to evaluate the validity of criticisms directed at these theories in foreign scientific literature. To achieve this, we analyzed H. Kelsen’s writings from various periods and reviewed subsequent scholarly contributions that focus on his theory of normative conflicts. This study delineates two versions of Kelsen’s theory - holistic and realistic - illustrating their methodological foundations and demonstrating the role of conflicts between norms at different levels within the hierarchical structure of legal order. This structure remains consistent across both historical versions of the pure theory of law. Based on our analysis of critical literature, we identify vulnerabilities in the main arguments against the realist definition of normative conflict and against the doctrine of “alternative authorization” associated with the theory of hierarchical conflicts.