Hans Kelsen and the Pure Theory of Law
The Austrian Hans Kelsen is a staple of the jurisprudential canon. His theory is difficult at first sight and this is not helped by the language he dresses his theory up in. However, the theory is actually realistic.
It is important to realize that Kelsen’s pure theory is meant to provide an account of what is presupposed by any other accounts of law – whether philosophical or sociological. Before the sociologists can show you accounts of the social behavior of legal officials, accounts of corruption, judicial subjectivity, etc s/he has assumed that there is legal order, has presupposed that these were legal officials, that that was a judge etc. But how do we know that there is legal system, how are we to ‘understand’ the nature of the behavior of these social actors and identify who they are and what they are doing?
I propose you use the concepts of Rational reconstruction and legal positivism.
You want to offer a science of law… what are your materials… surely you are bound to be a positivist. In other words surely you must take as you starting point what is there.. the material of the already existing order… if you wish to write a book on land law you first presuppose that such a book is possible, second that there is a set of material that it is possible to reconstruct in a systematic whole and third that this will be recognizable by a potential audience.
Thus law and legal science are tied to the positive law to the norms and institutions that are established. A legal scholar may wish to criticize or to state that much of what is there is inefficient, or unjust etc, but first he must say what it is that is there. (That is why Bentham and Austin separated the study of the positive law – law as it is – from censorial jurisprudence – of the argument for changes etc.) As participants in the legal process the scholar may argue for reform, but as a scholar they are first bound by the law as it exists; that is what provides the material for their analysis.
But Kelsen seems strange here because he clearly states that the study of law cannot be reduced to any set of social facts. It is the normative arrangement that is rationally reconstructed behind any set of (legally material) social facts that Kelsen is interested in. Kelsen’s positivism is influenced by the times he lived in and the logical positivism of the Vienna Circle. These logical positivists selected various branches of knowledge, various branches of the sciences and concepts used and attempted to reconstruct them on the basis of rational principles. The very diffusive nature of the human activity associated with a body of knowledge meant that the actors often acted without a clear understanding of the assumption employed or of the results achieved. In a rational reconstruction the corpus of knowledge is given a systematic order; second clarity is achieved through precision in definitions and the reduction of the number of undefined terms; third, the truth of a multitude of complex and unevident theorems was demonstrated (and logically guaranteed) by deriving them from a relatively small number of axioms and postulates whose truth was held to be self evident.
Kelsen provides the conceptual tools for such a reconstruction, so that given any particular system of law we can reconstruct – regardless of it empirical content – a proper representation of it. The actual empirical content, such and such a rule, and social activity in consequence of that rule, are only the material to be reconstructed. The rules may change and indeed are always changing, but the logical structure of the reconstruction will not.
To quote Kelsen: ‘It is the task of law to represent the law of a community, i.e., the material produced by the legal authority in the law-making procedure, in the form of statements to the effect that if such and such conditions are fulfilled, then such and such a sanction shall follow. These statements, by the means of which the science of law represents law, must not be confused with the norms created by the law-making authorities. It is preferable not to call these statements norms, but legal rules. The legal norms enacted by the law creating authorities are prescriptive; the rules of law formulated by the science of law are descriptive. It is of importance that the term ‘legal rule’ or ‘rule of law’ be employed here in a descriptive sense.’ (Quote from General Theory of Law and State, p. 45)
Like any other empirical science, normative jurisprudence describes its particular object. But its object is norms and not patterns of actual behavior. The statements by means of which it describes norms in their specific connection within a legal order are not themselves norms. Only the law-creating authorities can issue norms. The ought-statements in which the theorist of law represents the norms have merely descriptive import; they, as it were, descriptively reproduce the ‘ought’ of the norms. It is of utmost importance to distinguish clearly between the legal norms, products of the law-creating process, which are the objects of jurisprudence, and the statements of jurisprudence. Traditional terminology shows a dangerous inclination to confuse them, and to identify law and the science of law. (Quote B, General Theory of Law and State, p.163.)
