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

⁴ See Cotterrell, Roger B.M., The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy (1992); Green, , supra note 1.Google Scholar

⁵ Cotterrell, , supra note 4, at 85.Google Scholar

⁶ Id. at 86.Google Scholar

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

¹¹ Id. at 107.Google Scholar

¹² Rickert, Heinrich, Die Grenze der naturwissenschaftlichen Begriffsbildung: Eine logische Einleitung in die historische Wissenschaft 234 (1902).Google Scholar

¹³ Kant, Immanuel, Critique of Pure Reason 466, A 418, B 446 (Paul Guyer & Allen W. Wood eds., 1998)(defining this material nature (natura materialiter spectata), as “the sum of appearances is so far as they stand, in virtue of an inner principle of causality, in thoroughgoing interconnection.”).Google Scholar

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

¹⁶ Sander, Fritz, Rechtsdogmatik oder Theorie der Rechtserfahrung? Kritische Studie zur Rechtslehre Hans Kelsens 93 (1921).Google Scholar

¹⁷ Sander, Fritz, Die transzendentale Methode der Rechtsphilosophie und der Begriff der Rechtserfahrung, 1 Zeitschrift für öffentliches Recht 468, 476 (1919–20).Google Scholar

¹⁸ Sander, , supra note 16, at 94–95.Google Scholar

¹⁹ See Brandom, Robert B., Making it Explicit: Reasoning, Representing, and Discursive Commitment 9 (1994).Google Scholar

²⁰ Kaufmann, Felix, Theorie der Rechtserfahrung oder reine Rechtslehre? Eine Entgegnung, 3 Zeitschrift für öffentliches Recht 244 (1922).Google Scholar

²¹ A pure theory, in its proper development, must thus be able to develop all of its pronouncements from an analysis of the logic of the basic norm alone. The rule of recognition, conversely, cannot feature as an ultimately comprehensive concept of law, because it actually already presupposes a range of specific positivist content (e.g., the difference between officials and citizens).Google Scholar

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

²³ See infra text accompanying note 31.Google Scholar

²⁴ See Kelsen, Hans, Rechtswissenschaft und Recht: Erledigung eines Versuches zur Überwindung der Rechtsdogmatik 3 (1922).Google Scholar

²⁵ The importance of Lon Fuller's still too readily neglected contribution to jurisprudence should become apparent here. Fuller correctly saw that an anti-positivist project could only hope to be successful as a skeptical reconstruction (i.e., if it started from the insight that the content of any legal philosophy has to be limited to that which the law cannot consistently claim to be, to claims about the law which cannot be falsified by the law itself). This focus on formal consistency, however, is troubled by the fact that the law, so to speak, creates itself anew at every moment and does not even rely on formal consistency. Very often it retrospectively declares inconsistencies to be consistent and vice versa, faults can heal and be rendered retrospectively legal and valid pronouncements can be rescinded.Google Scholar

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

²⁸ Kelsen, Hans, Introduction to the Problems of Legal Theory: A Translation of the First Edition of the Reine Rechtslehre or Pure Theory of Law 9 (Stanley L. Paulson ed., 1992).Google Scholar

²⁹ Note the similarity of Kelsen's notion of the scheme of interpretation with Searle's concept of constitutive rules and institutional facts which work according to the same scheme: “X counts as Y in C.” The advantage of Kelsen's account, apart from it being first in history, is that Kelsen does not need to rely on the psychological notion of “acceptance,” as Searle does, and which makes his conception either circular or metaphysical. See John R. Searle, The Construction of Social Reality (1995).Google Scholar

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