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Kelsen, Sander, and the Gegenstandsproblem of Legal Science

Published online by Cambridge University Press:  06 March 2019

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One of the main problems which has emerged in recent years in the debates of legal positivism has been a rather defensive twist in its self-understanding (i.e., its self-affirmation in terms of what it is not). Now, whereas such a negative approach does not in itself pose a problem, in the case of legal positivism it has led to a series of rearguard battles against claims stemming, on the one hand, in more general philosophic developments, and, on the other, in doctrinal legal scholarship. The result has been that some have wondered if between those conceptual and institutional demarcations, between the philosophic and the juridical departments, there actually remains anything for positivism to stand for. Is there anything it actually claims? Accordingly, a perceived dilemma of positivism has emerged along the following lines: insofar as legal positivism makes a sound claim, this claim is very weak and, by itself, not very interesting; insofar, however, as positivism tries to make a strong and interesting claim, this claim can be shown to be fundamentally misguided.

Type
Research Article
Copyright
Copyright © 2011 by German Law Journal GbR 

References

1 Surprisingly, it has been precisely this philosophic sophistication of the Pure Theory which has led many theorists to avoid it and has driven them to the mixture of quasi-philosophy and quasi-sociology, which currently makes up the tradition of Hartian positivism. Nevertheless, the same philosophic sophistication of the Pure Theory has, in recent years, also sparked a renewed interest in Kelsen and even something of a Kelsen renaissance in the Anglo-American world of jurisprudence and legal theory. For evidence, see only the livelyGoogle Scholar

debate ignited by a blog-post from Michael Steven Green, in which scholars like Brian Leiter, John Gardner, Anthony D'Amato (if their web-signature can be trusted and the posts were really from them) and many others have engaged. To follow the debate, see http://leiterlegalphilosophy.typepad.com/leiter/2007/10/michael-green-a.html or http://lsolum.typepad.com/legaltheory/2007/10/should-we-study.html. See also Michael Steven Green, Hans Kelsen and the Logic of Legal Systems, 54 Ala. L. Rev. 2 (2003).Google Scholar

2 See, e.g., Green, , supra note 1.Google Scholar

3 The dilemma of naive positivism's failure to be positivist enough is of course isomorphic to the dilemma of naive liberalism's failure to be liberal enough to accept illiberal substantive moral theories. Liberalism and positivism have a conjoined fate. Both are attempts of philosophy to “let the world be” (in both the extreme quietist and the metaphysic sense of the phrase) and to demarcate a limit of philosophy from within. The reflexivity of this approach (i.e., the degree of its non-naivety) will be the sole criterion of the success or failure of both positivism and liberalism.Google Scholar

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7 The viewpoint of Hart's inaugural lecture of 1953 suggests an attack on empiricism because concepts are no longer to be seen as representing anything in a one-to-one fashion. The meaning of a legal concept, according to this view, cannot be defined as if the concept represented some invariant state of affairs.Google Scholar

8 Cotterrell, , supra note 4, at 91.Google Scholar

9 Id. at 90.Google Scholar

10 Id. at 91.Google Scholar

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14 By “legal science” I refer to doctrinal legal scholarship, or legal research (i.e., what we do in law schools and get money for from research bodies and the government). The Germans call it “Rechtswissenschaft.” The term “legal science” is generally avoided by Anglo-American lawyers and some think this has to do with the narrower meaning of the English “science” in comparison with the German “Wissenschaft.” But I tend to think the problem has its roots in the differences of Continental and Anglo-American legal education stemming in a difference of reception of Roman Law.Google Scholar

15 Sander tried to defend the Pure Theory against attacks by the legal sociologist Bernhard Stark, who in a polemical article insisted that legal science has to be conducted as a science of facts (i.e., as sociology). Doctrinal legal studies, conversely, have to be “nihilised,” just as astrology and alchemy have been previously. See Bernhard Stark, Die jungösterreichische Schule der Rechtswissenschaft und die naturwissenschaftliche Methode, in Die Rolle des Neukantianismus in der Reinen Rechtslehre 422 (Stanley Paulson ed., 1988); see also Fritz Sander, Rechtswissenschaft und Materialismus, 47 Juristische Blätter (1918).Google Scholar

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22 Friedrich Carl von Savigny, 1 System des heutigen Römischen Rechts 14 (1840).Google Scholar

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26 Kelsen, , supra note 25, at 181–82.Google Scholar

27 Together with (1) the doctrine of authorisation; (2) the doctrine of the hierarchical structure of the legal order; (3) the doctrine of the dual character of the legal act; (4) the doctrine of the complete legal norm; (5) the doctrine of the Fehlerkalkül; (6) the doctrine of the basic norm, and (7) the doctrine of the scheme of interpretation make up the seven doctrines of the Pure Theory of Law. Lippold has eight (quite similar) “elements” of the Pure Theory of Law. See Rainer Lippold, Recht und Ordnung: Statik und Dynamik der Rechtsordnung 526 (2000); Kletzer, Christoph, Das Goldene Zeitalter Der Sicherheit: Hersch Lauterpacht Und Der Modernismus, in Hans Kelsen und das Völkerrecht: Ergebnisse eines internationalen Symposiums in Wien, 1–2 April 2004 (Klaus Zeleny, Robert Walter & Clemens Jabloner eds., 2005).Google Scholar

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30 This doctrine is, of course, the doctrine of the basic norm, the most misunderstood doctrine of Kelsen's work. The latter is not simply an odd addition made at the top of an existing legal system, but the explicit philosophic formalisation of the presuppositions of validity already made at every stage of legal cognition. It is not that we could first start with, say, a local statute and then work our way up via the federal stature and the constitution to the basic norm. Viewed in such a way, residing at the top of the legal system, the basic norm must of course appear as arbitrary and absurd. Rather, Kelsen's claim is that without presupposing validity, we cannot even start with the local statute, we could not start anywhere. There would be no question to answer. The basic norm is simply the legal formulation of this presupposition of validity. So it is not the case that without the basic norm there would be a legal system which would somehow lack validity, but there would be no legal material in the first place! Just as it is said that life is understood backwards, but lived forwards, the law is understood backwards but formalised forwards. It is the complex notion of a “presupposition” (Voraussetzung) which does most of the work here and which is not studied enough in jurisprudence. This is particularly unfortunate as there is an intimate relation between the “positivity” of the law and the “presuppositivity” of its validity.Google Scholar

31 See Joseph, Raz, The Purity of the Pure Theory, in Normativity and Norms: Critical Perspectives on Kelsenian Themes 238 (Bonnie Litschewski Paulson & Stanley L. Paulson eds., 1998) (proposing this, but leaving out all questions relating to the possible reasons for this purity).Google Scholar

32 See, e.g., Vinx, Lars, Hans Kelsen's Pure Theory of Law: Legality and Legitimacy (2007). Google Scholar

33 This is the reason most Kelsen scholars try to steer clear of Luhmann, whose ideas, despite their closeness to Kelsenian themes, nevertheless remain sociological.Google Scholar

34 Kelsen, Hans, Der soziologische und der juristische Staatsbegriff: Kritische Untersuchung des Verhältnisses von Staat und Recht 46 (1928).Google Scholar

35 See Kelsen, Hans, The Pure Theory of Law 104–05 (2d ed. 2000).Google Scholar

36 See id. at 65.Google Scholar

37 This is, of course, a very Hegelian claim: “It is philosophical insight which recognises that Church and state are not opposed to each other as far as their content is concerned, which is truth and rationality, but merely differ in form … . In contrast with the faith and authority of the Church in relation to ethics, rights, laws, and institutions, and with its subjective conviction, the state possesses knowledge. Within its principle, the content in no longer essentially confined to the form of feeling and faith, but belongs to determinate thought.” G.W.F. Hegel, Elements of the Philosophy of Right 299, §270 Addition (H.B. Nisbet trans., 1991).Google Scholar

38 Kelsen, , supra note 36, at 65.Google Scholar

39 Again, consider Hegel: “Science … has the same element of form as the state,” and “The state knows what it wills, and knows it in its universality as something thought.” Hegel, supra note 38, at 300, §270 Remark, 290, §270 Addition.Google Scholar

40 Kelsen, Hans, Reine Rechtslehre 69 (2d ed. 1967). The quote is taken from a footnote in the German original which has been omitted in the English translation.Google Scholar

41 Kelsen, Hans, General Theory of Law and State 374 (1999); see also H.L.A. Hart, Kelsen Visited, in Normativity and Norms: Critical Perspectives on Kelsenian Themes 83 (Bonnie Litschewski Paulson & Stanley L. Paulson eds., 1998); cf. Hegel, supra note 38, at 294, 301, §270 Remark (“All that need be mentioned here is that the attitude of the state towards opinion—in so far as it is merely opinion, a subjective content which therefore has no true inner force and power, however grandiose its claims—is one of infinite indifference.”).Google Scholar