Kelsenian Legal Science and the Nature of Law

The social fact thesis stands in tension with the is-ought-distinction if it identifies law with a set of facts. Kelsen’s theory instead stressed the normativity of law, due to which law belongs to the realm of the ought and not to the realm of the is. Insofar he is an opponent of the social fact thesis. However, there are other social fact theses, some of which fit to Kelsen’s theory. This holds, in particular, for the theory that norms are the meanings of social facts. Such versions too are confronted with serious problems as they cannot explain the legal validity of both law-creating norms as well as the law of non-contradiction and other fundamental rules. The social fact thesis is hence either too weak, if it demands just the existence of any or some social facts, or too strong, if it demands an accordance of facts and norms. So even for positivism this thesis is not tenable.

Is it possible to articulate a genuine pure theory of law without it ceasing to be a positivist theory of law? The project of a pure theory of law can be held to presuppose a “nature of law” whose criteria lead to transcendence with respect to positive law, even though it is not its purpose. The difficulty facing the pure theory of law is: to be absolutely dependent on its object, in a manner analogous to the physico-chemical sciences, and, as a result, to be a necessarily “impure” theory. For, how is the pure theory of law then to conceive and respond to that which is not, or no longer, legal in the system of positive law? If the methodological purity of the theory is to be retained, and, thus, that there is a criterion, furnished by the pure theory of law, to distinguish ‘real’ legal norms from ‘false’ ones, is the capacity to utilize the criterion not immediately dissolved by the underlying empiricism of its dependence upon its object?

In his major work “Die reine Rechtslehre” (1934) Hans Kelsen intended to establish a legal science (Rechtswissenschaft) devoid of value judgements. The construction of a “basic norm” (Grundnorm) formed the basis for a purely scientific systematization of legal norms. Kelsen constructed the outlines for his legal doctrine in clear opposition to natural law theory. The latter was, in Kelsen’s view, a metaphysical legal order, that continued to influence legal science, despite the apparent dominance of legal positivism in contemporary jurisprudence. Hence, it is unsurprising that Kelsen’s work strongly emphasized the differences between “die reine Rechtslehre” and natural law theory. It does not follow, however, that Kelsen’s legal theory differs from natural law theory in every respect. In fact, there are strong reasons to assume that a comparison of the two theories would in fact reveal some striking similarities. This would seem to be true, both in relation to the structure and the function of the two theories. This chapter offers an analysis of the concept of legal systematics in natural law theory and in Kelsen’s “reine Rechtslehre”. The point of departure is the concept of systematics in natural law theory.

The challenge of constitutionalization arises, first of all, from the positivization of moral principles in law, elaborated by an Enlightened rational jusnaturalism. From its inception, according to some ethical perspectives, a crisis of the artificial character of the law occurs with a concomitant dissolution of the Kelsenian legal science of positive law, whose formal paradigm is rigidly centered on procedures of authorization and competence. To this outmoded Kelsenian model are opposed theories of moral justification that invoke forms of foundational rationality and, thereby, shift the focus and emphasis from dynamic-voluntarist to static elements. It is believed that the Constitution has filled up the ‘legal space’, redrawing within the boundaries of the law the classic dialectical tension of natural law/positive law, and circumscribing, through the requirement of justification, the previously irreducible Kelsenian space of interpretative discretion. However, is constitutionalization the irreversible crisis of legal positivism and the abandonment of the methodological disenchantment of Kelsen legal science? In this chapter, the predominant conception of constitutionalization is placed into question by analyzing different strategies for the composition of legal agreements, and reemphasizing the indispensability of some central aspects of the Kelsenian tradition. The attempts to refound forms of moral objectivity, situated between procedural strategies and comprehensive ethics, contain the underlying risk of a moralization of law: a risk which can only reinforce the disorientation of contemporary jurisprudence through its preceding rejection of a disenchanted and sober reaffirmation of the rationale of legal positivism. Only the latter is able to understand the tension between law and the multiplicity of ethical viewpoints existing in our fragmented, contemporary societies, without claiming to lead them back to a universal moral point of view with a transcendental foundation.

The critique of practical reason, in all its possible forms, has a far more important and decisive role in Kelsen’s thought than the rejection of Natural law doctrine. Admitting that a practical use of reason is legitimate, namely, that there is a possible connection between intellect and will, would mean destroying the whole foundation of the scientific undertaking of the Pure Theory of law and its conception of the legal norm, which is its central aspect. By depriving practical reason of all foundation, any reference to agency and practical deliberation is excluded from Kelsen’s theory of law. Consequently, the Ought loses all capacity of attraction and motivation of human action, rendering Kelsen’s normativity inert. This chapter intends to show that Kelsen’s enterprise of purifying legal science only attains its fulfilment when the practical dimension of reason itself is eradicated, along with the sociological or political or ideological aspects of law; and in this way the Pure Theory of law is forced to forgo some of its distinctive features, as is evident in Kelsen’s final works; and that the demise of practical reason strongly destabilizes the Pure Theory of law itself.

In this paper I highlight some of the problems of the Kelsenian conception of legal interpretation. The analysis has two main theses. The first maintains that Kelsen has no unitary concept of legal interpretation because with these words he would refer to very different activities which cannot be gathered in a unitary understanding. The second thesis – not completely independent from the former – is that Kelsen would not even have a unitary concept of the indefiniteness of Law. Finally, I try to offer an explanation for this deficient portrayal of interpretation given its central position for the understanding of Law. This explanation is based on Kelsenian moral skepticism, which also lies at the centre of his claim of the purity of a legal theory.

Kelsen’s two basic ideas on legal interpretation are, on the one hand, its characterization as a hybrid with both cognitive and volitional elements due to the partial indeterminacy of law, and, on the other, the relationship between legal interpretation and the structural properties of the legal system (dynamic principle). Kelsen’s solution to the problem of irregular norms – the so-called “tacit alternative clause” – not only attracts accusations of decisionism but also seems to render the question of norm content and, therefore, legal interpretation, within his theory of law irrelevant. I will argue that a reconstruction of Kelsen’s thesis which renders it less open to accusations of irrationalism is possible, starting from his initial intuition regarding legal interpretation. This reconstruction is based on two arguments: (i) the distinction between the validity of a norm and the fact that the act by which it is created is a correct interpretation of the higher norm, that is, a non-reductionist concept of validity; and (ii) a functional interpretation of the “determination” of the norm content between the different hierarchical levels of the legal system.

There is little agreement in contemporary political philosophy about how to conceive of human rights, except for a shared concern for freeing the concept of human rights from the legacy of traditional natural law theories. Even so, there is no place for anything like a reconciliation of Kelsen’s political-legal theory with a contemporary concept of human rights. The reason is not that Kelsen’s well-known and notorious criticism of various natural law traditions applies equally to contemporary philosophy of human rights, but that Kelsen’s account of democracy is incompatible with the idea of human rights. For despite all differences in detail, philosophers tend to conceive of human rights as substantive normative principles, which articulate standards of legitimacy for socio-political institutions that protect individual persons from legal or political overreach. By contrast, Kelsen conceives of democracy essentially as a method of legislating based on procedural authorization that imposes no substantive restrictions on the very content of laws. True, Kelsen explicitly defends constitutional “basic and liberty rights” with the argument that insofar as majority rule is essential to democracy, protection of minority rights is so too. But Kelsen’s account of those constitutional rights falls short of any idea of human rights, for constitutional rights are merely instrumental to the maintenance of democracy and articulate constitutional particulars of democratic states, not general substantive standards for legitimate government.

Kelsenian legal science, centred upon a monist, global legal system fails to acknowledge the complex character of the process of global law making. The process results from an elaborate combination of political and legal principles in a pluralistic legal order composed of three main elements: International law, the State, and the individuals. Within this process, the conventional position of the individual as subject to norms – in a state of subjection– is placed into question, and there arises the possibility of a subject of international law – the participation of subjects in the formulation of the norms which regulate their conduct at the level of international law. In response to this transformation of the position of the individual, the chapter commences from a Kelsenian understanding of positive law which is then extended to the contemporary doctrine of Human Rights. This, in turn, leads to the modification of the modern idea of State sovereignty through the recognition of an individual sovereignty.

In this chapter, I examine Kelsen’s contention that the natural law doctrine necessarily depends on the existence of God or other supreme creator. I argue that this contention is based on a number of interrelated claims: that the natural law doctrine attempts to provide a definitive standard of justice; that such a definitive account may only be posited by a superhuman creator; that natural law seeks to derive principles of justice from the nature of reality; and that natural law norms may only be derived from a general norm posited by God, moreover, if natural lawyers deny the claim that the principles of natural law may only be derived from God, they must necessarily be attempting to derive an ought from an is. Throughout the chapter, I challenge Kelsen’s claims by considering natural law theories which do not conform to them. I consequently argue that Kelsen’s conception of natural law is a caricature which does not correspond to, or accurately reflect, the rich and varied tradition of natural law thought.

Kelsen rejects the scientific character of natural-law doctrine. For Kelsen, value judgments are ultimately not rationally justified but a matter of emotions. They can be rationally justified only relative to a certain moral or legal order. Kelsen also rejects the assumption of natural-law doctrines that value is immanent in reality. On the other hand, he suggests that legal science is possible regarding positive law, which is converted into a normative order by presupposing a “basic norm”. I will not challenge Kelsen’s critique of traditional natural-law doctrine, but discuss two issues: Can Kelsen’s own account of the “Pure Theory of Law” claim to be scientific, and does Kelsen’s critique of traditional natural-law theories affect modern versions of normative theories of law?

As to the first issue, according to Kelsen, legal science is possible because it refers to positive law, which one can identify by empirical means. However, Kelsen is not content with a purely descriptive approach to law, but wants to show how legal science is possible as a science of norms. In this respect, the “basic norm” is crucial. This chapter questions whether the mere presupposition of a basic norm is sufficient to establish the scientific character of legal doctrine.

As to the second issue, quite a number of theories have been advanced that purport to show how scientific, or at least rational, treatment of normative issues is possible without the dubious assumptions of traditional natural-law doctrines. I will discuss in particular Gustav Radbruch’s “methodological trialism” and the discourse theory of law as presented by Robert Alexy. From this discussion, I will then proceed to address the further question of the continued relevance of Kelsen’s critique of natural-law doctrine for legal science.

In a series of essays published from the late 1920s up to the mid-1960s, Hans Kelsen carries out a radical critique of natural law theory. The present paper purports to provide an analytical reconstruction and a critical assessment of such critique. It contains two parts. Part one surveys the fundamentals of Kelsen’s argumentative strategy against natural law and its theorists. Part two considers, in turn, two critical reactions to Kelsen’s criticisms: by Edgar Bodenheimer, on behalf of traditional natural law theory; by Robert P. George, on behalf of “the new natural law theory”. As the analysis suggests, Kelsen’s critique stands up to such criticisms.

The Kelsenian project of a legal science of positive law remains, as demonstrated by the majority of contributions to this volume, a source of continued relevance for contemporary legal theory. In the subsequent development of legal theories of positive law, the Kelsenian project has, however, effectively ceased to be accorded a significant degree of pertinence. The loss of pertinence is marked by the marginalization of the methodological questions and framework of the Kelsenian project and the shift in orientation to other theoretical forms of conceptualization of positive law. The effective jettisoning of the Kelsenian project, predicated upon a transformation in the understanding of the purpose of a theory of positive law, has itself resulted in a significant differentiation and disagreement concerning the foundation for, and parameters of, a legal theory of positive law. This differentiation and disagreement has centred, in contemporary Anglo-American work in particular, upon the question of the degree to which the legal theory of positive law excludes or includes morality (see, for example, Gardner 2001; Kramer 2003; Himma 2001, 2002, 2005; Marmor 2001, 2002, 2007; Raz 1975, 1979, 2011; Shaprio 2009; Waluchow 1994) and upon the wider question of the theoretical or methodological basis for the elaboration of a legal theory of positive law (see, for example, Coleman 2001; Leiter 2007; Shapiro 2013).