In lieu of an abstract, here is a brief excerpt of the content:

[48], (18) Lines: 11 ——— 0.8pt P ——— Normal P PgEnds: T [48], (18) 6 The Pure Theory of Law Neo-Kantian Methodology I shall now go into the question of my more immediate studies as a student in the university and my veering toward Kelsen’s Pure Theory of Law. I cannot say with precision why Hans Kelsen was for me a more strongly attractive teacher than Othmar Spann. Spann’s range was without a doubt much larger, both philosophically and historically, than the range of Kelsen’s work. What attracted me, so far as I recollect, was the precision of analytical work that is peculiar to a great lawyer. The success of the Pure Theory of Law, and its continuing importance in the philosophy of law, lets one sometimes forget that Kelsen was a practical lawyer who drafted the Austrian constitution of 1920 and became a member of the Verfassungsgerichtshof. His commentary on the constitution he drafted shows his juridical acumen to its greatest advantage. What I learned from Kelsen, I should say, is the conscientious and responsible analysis of texts as it was practiced in his own multivolume work and in the discussions in his seminar. His work was inseparable, of course, from the Pure Theory of Law itself, which furnished a logical analysis of a legal system. This analysis of the system, culminating in Kelsen’s conception of the Grundnorm (basic norm), still stands today. It has been improved in numerous details, as for instance by Merkl’s elaboration of the Delegationszusammenhang as well as by the expansion of the system by Verdross beyond the constitutional Grundnorm to the fundamental norm of international law. There have been further refinements through the studies of the younger men like Felix Kaufmann, Fritz Schreier, and Emanuel Winternitz, but on 48 the pure theory of law: neo-kantian methodology [49], (19) Lines: 128 t ——— 9.0pt PgV ——— Normal Pag PgEnds: TEX [49], (19) the whole Kelsen’s analysis was complete and could be improved only in this or that detail. This fact explains why there has been no great further development of the Pure Theory of Law. It was the splendid achievement of a brilliant analyst, and it was so good that it hardly could be improved upon. What Kelsen did in this respect still stands as the core of any analytical theory of law. I later used this core, with some improvements of my own, in the courses in jurisprudence that I gave in the School of Law at LSU.1 I should like to stress that there never has been a difference of opinion between Kelsen and myself regarding the fundamental validity of the Pure Theory of Law. My differences with Kelsen’s theory began to evolve gradually . That I was not a simple adherent can be gathered from the fact that I made my own Ph.D. with both Spann and Kelsen as doctor-fathers, a feat greatly admired by the younger people at the time because the universalism of Spann and the neo-Kantianism of Kelsen were considered to be incompatible. The differences evolved from ideological components in the Pure Theory of Law, which are superimposed on the logic of the legal system proper but do not affect its validity. They can be removed while leaving the core of the theory intact. This superimposed ideology was the neoKantian methodology, which determined the field of a science by the method used in its exploration—in this case, by the logic of the legal system. Since in the conventional terminology of the time the field that Kelsen represented as a professor was Staatslehre (political theory), and since neo-Kantian methodology circumscribed by its method the logic of the legal system, Staatslehre had to become Rechtslehre (theory of law), and everything that went beyond Rechtslehre could then no longer be a part of Staatslehre. That, of course, was an untenable position. At the time, I did not have a full understanding of the rather primitive semantic games involved in such misconstructions, but at least I sensed them. It was obviously impossible to deal with the problems of the Staat, and of politics in general, while omitting everything except the logic of legal norms. Hence, my difference from Kelsen developed through my interest in the materials of a political science that 1. Voegelin’s LSU law lectures are published in CW, vol. 27, The Nature of the Law and Related Legal Writings. 49 [13.59.100.42] Project MUSE (2024...

Share