Hans Kelsen's Pure Theory of Law: Legality and Legitimacy by Lars Vinx

Published date01 July 2008
DOIhttp://doi.org/10.1111/j.1468-2230.2008.00710_1.x
AuthorNeil Duxbury
Date01 July 2008
personal, subjective element from judging and reduce it to a mechanical process
of givinge¡ect to the deliverancesof objectivereason. Even if this is an achievable
aspiration (which seems highly unlikely), considerably more work than Stevens
has done inTo r ts a n d Ri g h t s will be needed to show how it might be realised.
Ultimately, then, I think that Stevens has failed to deliver on his promise of
a discretion-free judicial law of torts. But the attempt is splendid and will
be particularly welcomed by those, like the author himself, whose preferred
approach to the law of torts is ‘conservative’ or even ‘reactionary’ (348). Tor t s a n d
Rights is full of stimulating and provocative analysis and argument, both descrip-
tive and normative. It deserves a large and wide audience.
Peter Cane
n
Lars Vinx, Hans Kelsen’s Pure Theory of Law: Legality and Legitimacy,
Oxford: Oxford University Press,2007, x þ230 pp, hb d50.00.
Hans Kelsen developed a nd modi¢ed his pure theory of law regularly throughout
his long career, but some of its basic characteristics did not change. One of these
characteristics ^ that it is a descriptive rather than a prescriptive theory, concerned
with what the law is rather than with what it ought to be ^ is subjected to serious
and intelligentscrutiny by LarsVinx. Puretheory purists are unlikelyto like what
Vinx has done.‘[T]he pure theory of law’, he argues,‘must be understood in the
light of a normative ambition’, namely, that of aim[ing] to develop a theory
of law adequate to the project of realizing an ideal of the rule of law’ (176). Did
Kelsen profess this aim? Vinx concedes that his reading of Kelsen ^ largely an
exercise in the reconstruction of Kelsen’s position’, ‘extrapolation from Kelsens
views’ and developing ‘line[s] of argument’ which Kelsen ‘inspired’ rather than
advanced (72,107, 198 n 49) ^ ‘appearsto £y in the face of’ Kelsen’s‘own description
of the natureof his legal-theoretical project’, perhaps even requiring‘us todiscard
some elements of Kelsen’s self-understanding as a legal scientist’ (2, 24).
Turning the puretheory into somethingother thanwhat Kelsen considered it to
be is a perfectly legitimatetheoretical project in its own right, but not a project easily
accomplished.‘The pure theory, Kelsen o⁄cially claims’ ^ Vi nx likes to imply that
there is an ‘uno⁄cial’ Kelsen who wants to be heard (see also 15, 16, 56) ^ ‘remains
scienti¢c and non-evaluative’ (20). Yet,‘[a]ccording to Kelsen, the pure theory is a
normative science’(10).‘Howcanalegalscience,despitethefactthatitisanormative
science . . . avoid being prescriptive or evaluative?’ (12). For a Kelsenian, answering
this question is easy: the pure theory is a legal science in the sense that it describes a
legal system as a hierarchically-arranged collection of legal norms authorized in the
¢rst instance by a basic norm.Vinx knows this (see, eg,17, 23, 29^30, 52), but cannot
seewhyKelsenhimselfshouldhavefoundtheanswersatisfactory:‘hemustclearly
have assumedthat there is some kind of relationship between the pure theoryof law
and the political values that he attempted to defend’ (16).
n
Australian NationalUniversity College of Law.
Reviews
647
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
(200 8) 71(4) 641^6 61

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