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Chapter ONE A Pure Theory of Law? In philosophy, as in other disciplines, we often try to explain one kind of things in terms of another. Generally, this is what a theoretical explanation amounts to. If we manage to provide an explanation of a certain aspect of the world that seems problematic , in terms of some other aspect that is less problematic, we will have certainly made some progress. Some types of explanation, in philosophy as well as in science, have the unique character we call reductive: If there is a clear demarcation of one type of discourse or class of statements, and we can provide a full explanation of that class of statements in terms of some other type or class, then the explanation is reductive. For example, if we could fully explain the realm of our mental life in terms of truths about the physical aspects of the world, we would have provided a reductive explanation of the mental to the physical realm. In some cases, however, philosophical explanation goes in the opposite direction, striving to show why a reduction of one kind of phenomenon to another, or of one kind of explanation to another, is impossible. It is with this latter, antireductionist theory of law that I want to begin here.1 1 Differentconceptions of what would count as a reductive explanation may be relevant to different domains. One type of reduction, which is sometimes called semantic, would have to satisfy the condition that the basic vocabulary of a theory, say T1, could be fully expressed by the axioms and vocabulary of a different theory, T2. If this condition is met, then we have a full semantic reduction of T1 to T2. Very few legal theorists have thought about reduction in this semantic sense (with the exception, perhaps, of John Austin, discussed in the next chapter). The type of reduction more relevant to legal theory is constitutive or metaphysical: The idea of a metaphysical reduction is to show that a distinct type of phenomenon is actually constituted and fully explicable by a different, more foundational, type of phenomenon or set of facts. Philosophers also discuss a third type of reduction, 13 A Pure Theory of Law? The clearest and most articulate attempt to provide an antireductionist theory of law was made by Hans Kelsen, in the first half of the twentieth century. Kelsen characterized his aspiration as an attempt to present a pure theory of law.2 In his own words, the aspiration was “to develop . . . a legal theory purified of all political ideology and every element of the natural sciences, a theory conscious , so to speak, of the autonomy of the object of its enquiry and thereby conscious of its own unique character.”3 It is no accident that law is flanked here by ideology (or, we should rather say, morality) on one side, and natural science on the other. The temptation to ground law on moral-ideological foundations stems from its essential normative character. Law is not a theoretical domain; it is there to make a practical difference . The law purports to give us reasons for action. It is, therefore , inevitable that we ask ourselves why the fact that an action is required by law would count in favor of doing it. It is natural to assume that a legal requirement can constitute a fact that would count in favor of doing something only if law is good, at least in some respect. Now, of course, not all law is really good, morally or otherwise. But there is this strong temptation to suggest that what the law is, or what would count as a legal requirement , somehow depends on what is good (or right, or morally required ). If nothing else, it would make it easier to explain why the fact that the law requires something counts in favor of doing it. But this temptation, Kelsen argued, is precisely the one that needs or quasi-reduction, called supervenience: A realm X would supervene on realm Y if and only if there are no changes or modifications observable in Y without corresponding observable changes or modifications in X. The question of whether supervenience is a genuine reductive relation or not is debated in the literature. I will largely ignore these complicated issues here. 2 Kelsen’s most important books on the pure theory of law are the first edition of his Reine Rechtslehre, published in 1934, and recently translated to English under the title Introduction to the...


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