Hans Kelsen's Earliest Legal Theory: Critical Constructivism
| Published date | 01 November 1996 |
| DOI | http://doi.org/10.1111/j.1468-2230.1996.tb02695.x |
| Date | 01 November 1996 |
Hans Kelsen’
s
Earliest Legal Theory:
Critical Constructivism
Stanley
L.
Paulson”
Legal positivism in the jurisprudential tradition of the European Continent
is
characterised by what might be called the facticity thesis: the law is ultimately
explicable in terms
of,
or ‘reducible to,’ a concatenation
of
fact
-
whether it be
power, the will
of
the sovereign, or the community’s acceptance
of
the legal
system.’ Shifting the idiom to a semantic counterpart of the facticity thesis, the
legal theorist
of
a reductive persuasion ‘provide[s] eliminative definitions
of
normative terms,’* introducing instead non-normative, descriptive terms, in what
Joseph
Raz
has called the reductive semantic thesis3 Kelsen’s conviction that the
facticity thesis
is
wrongheaded drives his theory, particularly in the very early
work. In place of the legal positivist’s facticity thesis, Kelsen introduces a
normativity thesis, which calls for an explication of law
-
and of legal obligation
in particular
-
altogether independently of fact. Shifting the idiom
to
a semantic
counterpart
of
the normativity thesis, the legal theorist
of
a non-reductive
persuasion argues that juridico-normative terms cannot be eliminated in favour of
non-normative, descriptive terms, or explicated by means of them. Kelsen’s
endorsement of the normativity thesis represents,
inter alia,
his rejection of every
fact-based legal theory. At its core, Kelsen’s Pure Theory of Law does not consort
with facts at
all.
Both Kelsen’s very early case against the facticity thesis and his introduction of
the normativity thesis to replace it are instructive, for together they set the stage for
virtually everything that follows. A full statement of these developments would
amount to
a
periodisation
of
the phases in Kelsen’s legal theory;
a
simple summary
will suffice here. Kelsen’s
early phase, critical constructivism,
is evident above all
in the
Hauptprobleme
der
Stautsrechtslehre
(191
1):
his first major work and
university
Habilitation.’
The
Hauptprobleme
represents Kelsen’s sustained
*School of Law and Department of Philosophy, Washington University, St Louis.
For hebful discussion and criticism,
I
wish to thank
Okko
Behrends, Malte DieSelhorst, and Ralf
Dreier (Gottingen), Stefan Hammer and Alexander Somek (Vienna), Bonnie Litschewski Paulson (St
Louis), and the referees of the
Review.
By legal positivism, thus characterised,
I
have in mind an ideal type, not a particular historical view.
For
Kelsen’s use of this ideal type
as
a part of his strategy in forging a ‘middle way’ between legal
positivism and natural law theory, see Paulson, ‘The Neo-Kantian Dimension in Kelsen’s Pure Theory
of Law’ (1992) 12 OJLS 31
I,
313-322. On the ‘middle way’ generally, see Raz, ‘The Purity of the
Pure Theory’ (1981) 35
Revue Inrernarionale de Philosophie
441459, repr in Tur and Twining (eds),
Essays
on
Kelsen
(Oxford: Clarendon Press, 1986) pp 79-97; Beyleveld and Brownsword,
‘Normative Positivism: The Mirage of the Middle Way’ (1989) 9 OJLS 463.
Raz,
ibid
at 443, repr at 81.
ibid.
I
do not mean to suggest that the differences between the facticity thesis and the reductive
semantic thesis amount to a mere shift in idiom.
For
example, H.L.A. Hart’s theory reflects the
facticity thesis but not the reductive semantic thesis; see Paulson, ‘Continental Nornativism and its
British Counterpart: How Different Are They?’ (1993) 6
Ratio
Juris
227, 236-241. Both theses do
apply, however, to Kelsen’s interpretation of the many legal theorists whom he relegates to the legal
positivist camp.
(Hereafter,
HP)
(Tiibingen: J.C.B. Mohr, 191
l),
repr 1923 with new ‘Foreword.’ (Rough English
equivalent of Kelsen’s title, ‘Main Problems in the Theory of Public Law.’)
Common in Central
Europe,
the
Habilirution
is the post-doctoral thesis submitted by the candidate in
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1996
(MLR
596,
November). Published by Blackwell Publishers.
108 Cowley Road, Oxford
OX4
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and 238
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Swt.
Cambridge,
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The Modem Law Review
[Vol.
59
research from 1906 to
191
1,
and the early phase continues up to about 1920. The
middle, classical phase,
from about 1920 to
1960,
comprises two crucial
developments, both evident by the mid- 1920s. First, critical constructivism
is
superseded by Kelsen’s effort, albeit in fits and
starts,
to provide something
approximating a neo-Kantian foundation for the normativity thesis; the case Kelsen
makes here
is
familiar from his theory of the basic norm. Right on the heels of this
first development comes a second: Kelsen adopts from his colleague, Adolf Julius
Merkl, the doctrine of hierarchical structure
(Stufenbaulehre)
as the basis for
conceptualising the legal system,
a
development marking the beginnings of
Kelsen’s ‘dynamic’ turn, his work on a procedurally oriented theory whose
elements displace many of the ‘static’ elements of the
Hauptprobleme.
And,
finally, in a
late, sceptical phase,
after 1960, Kelsen throws over much of the Pure
Theory of Law as we know it from his middle, classical phase, defending in its
place a volitional
or
‘will’ theory of law.
My concern here is with Kelsen’s early phase, critical constructivism. It has
received almost no attention at all in the postwar English-language literature on
Kelsen.6 The early postwar reception focused, understandably enough, on the
General Theory
of
Law
and State,
which appeared in 1945.7 Much of the later
reception has focused on the second edition of the
Reine Rechtslehre
(1960),
appearing in En lish translation in
1967,8
and, more recently, on Kelsen’s late,
sceptical phase!In other languages, too, there
is
little recent work on Kelsen’s
early, constructivist phase.”
The neglect of Kelsen’s critical constructivism is regrettable. His efforts at the
beginning of his long, classical phase and, in particular, the factors that led him to
adduce, or at any rate to adumbrate, a neo-Kantian argument on behalf of the
nonnativity thesis are hard to appreciate without some general sense of their roots
in his early, constructivist phase.
A fundamental theme of my paper is
constructivism
itself, the aspect of the
‘juridico-scientific’ tradition
-
specifically, of the Pandectistic of nineteenth-
century German legal science
-
that survives in Kelsen’s own work. Also
fundamental, representing the philosophical dimension of Kelsen’s theory,
is
methodological dualism,
a
hard and fast ‘is’/‘ought’ or
SeidSollen
distinction
as
defended by the Heidelberg neo-Kantians and developed in a more expansive way
by Kelsen. Finally, there is
central imputation,
which Kelsen introduces as an
alternative to the traditional concept of the legal person. If methodological dualism
shows Kelsen’s theory to be, even in its initial form,
a
radical departure from what
he identifies
as
the fact-based core elements of legal positivism, it is central
imputation that shows both how Kelsen implements this radical change and what
support of an application for admission to the
venia fegendi (Privatdozentur),
in
effect, the procedure
by means of which university lecturers are licensed.
6
For
an
overview,
see
Paulson, ‘Short Annotated Bibliography of Secondary Literature
in
English’ in
Kelsen,
Introduction to the Problems
of
Legal Theory
(hereafter,
LT;
first published in 1934 as the
first
edition of the
Reine Rechrslehre)
(Oxford: Clarendon
Press,
1992),
trans
B.L. Paulson and
S.L.
Paulson, at Appendix
111,
p
145.
(Hereafter,
GTLS)
(Cambridge, Mass: Harvard University Press, 1945).
Kelsen,
Pure Theory
of
Law
(Berkeley and Los Angeles: University of California Press, 2nd
ed,
1967), trans Max Knight.
See Kelsen,
Essays
on
Legal and Moral Philosophy
(Dordrecht and Boston: Reidel, 1973), ed Ota
Weinberger, trans Peter Heath; Kelsen,
General Theory
of
Norms
(Oxford Clarendon Press, 1991).
trans Michael Hartney. On the latter, see Beyleveld, ‘From the “Middle-Way’’ to Normative
Irrationalism:
Hans
Kelsen’s
General Theory
of
Norms’
(1993) 56
MLR
104.
10
Canino,
Kelsen e
il
problem della scienza giuridica
(Naples: Edizioni Scientifiche Italiane,
1987),
is
a welcome exception to the rule.
7
8
9
798
0
The
Modern
Law Review Limited
1996
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