Hans Kelsen's Pure Theory of Law: Legality and Legitimacy (review)

Hans Kelsen's theory has, regretfully, been neglected in North America, except by a few legal philosophers.¹ His political theory has also been neglected, even in Europe.² The publication of a book on Kelsen's political theory is therefore reason to rejoice.

One of the main reasons for the neglect of Kelsen's political theory is that it is considered to be at odds with his legal theory, and particularly with his legal epistemology. Kelsen expressed his ambition to build a positive science of law that would be a science in the full sense of the word, meaning that it would be distinct from its object; would be composed of descriptive propositions, capable of having truth value; would be value neutral; and would rely on a specific methodology, different from that of the social sciences. It seems to follow that such a theory can have no normative implications. Therefore, it is reasonable to think that if Kelsen produced a number of writings on various issues of political theory, and if these writings were normative, they could have no logical connection to his epistemological or his legal theory. They are not considered as interesting and original as his legal theory, and we should read them – if we read them at all – as parallel to and distinct fromthat theory. Lawand politics are two different realms, and, while the former should be dealt with only by means of a purely descriptive legal science, the latter can be analysed from the point of view of political theory, which is not necessarily a science in the same sense of the word and can therefore be normative.

However, dismissing Kelsen's political writings altogether or studying them separately leaves us with a puzzle. His conception of a positive science of law is what defines him as a positivist. If he were the only positivist legal theorist to also deal with political theory, we could easily discard his attempts in this field as an amusing hobby of no consequence to his more serious and important work, a sort of violon d'Ingres. But it is a fact that a very large number of scholars who claim to be positivists in the same sense have also produced writings in political theory. Does this mean that, by a strange coincidence, all of them are victims of an epistemological schizophrenia, being non-normative on the one hand and normative on the other? Or that there is, after all, some possible connection between legal theory and political theory?

There are several ways in which one could answer the latter question in the affirmative.

First, one could, as Kelsen himself suggested, consider that the description of a state of affairs can serve as the basis for technical norms.³ Thus legal science can show what legal means are best suited to a particular political end. There is no more need for the legal scholar to be committed to this political end than for the architect of a church to believe in God. A scholar could show, for instance, that creating a constitutional court is the best means to use if one wishes to have a guarantee of the constitution. This would be coherent with the positivist attitude of the Wertfreiheit, because it would be a neutral description of a causal relationship.

Second, one could stress that positivism presupposes moral relativism, which, in turn, is the basis for democracy, an idea that again has been developed by Kelsen.⁴

Third, one could argue that description by pure theory of a legal system, any legal system, is simultaneously the description of the way in which the state exercises its power. Kelsen's theory would be, in that sense, another version of Max Weber's description of the state. The theory would thus be only indirectly normative, since it would it would describe the process that gives rational legitimacy to the state's decisions without committing itself to prescribing obedience.⁵

Lars...