Hans Kelsen’s Pure Theory of Law: Key Concepts
Hans Kelsen and the Pure Theory of Law
Hans Kelsen was deeply committed to the development of a pure theory of law and, therefore, to the advancement of legal science. His work, Pure Theory of Law, explores concepts such as justice and democracy.
Main Objective of the Pure Theory of Law
Kelsen aimed to develop a doctrine that would ensure knowledge directed solely at the law. He argued that legal theorists should exclude all elements external to the law when analyzing it, setting aside political ideology to maintain the purity of the legal analysis.
Kantian Roots: Is and Ought
Kelsen’s distinction, rooted in Kantian thought, between ‘is’ and ‘ought’ differentiates between the law and the natural world. Law operates in the realm of ‘what should be,’ while nature exists in the realm of ‘being.’ This distinction leads him to view the standard as a judgment of what should be.
He distinguishes between two types of principles: those in the realm of being (nature of causality) and those in the realm of law (what should be).
Judgments of Being vs. Judgments of Ought
Judgments of being are descriptive statements subject to truth or falsity. In contrast, judgments of ought are expressed through statements that contain models of correct behavior. Kelsen believed that such statements cannot be subject to truth or falsity, highlighting the distinction between descriptive and prescriptive statements.
Avoiding the Naturalistic Fallacy
Kelsen avoids the naturalistic fallacy. For him, judgments of ‘ought’ are used to construe acts of will aimed at directing the behavior of others. However, Kelsen doesn’t see a real desire in the psychological sense behind these judgments, which leads him to consider that the rule of law is not necessarily identified with mandates.
Norms vs. Mandates
Kelsen suggests that the analogy between norm and mandate is partial, not absolute, differing from Austin’s view.
Kelsen notes that a legal rule has a property that allows it to bypass the reference to will, which is a feature of mandates. This property is validity, the specific existence of the rule, constituting its binding force. He considers this property typical of legal rules, not because they are mandates, but because many commands lack this property of validity.
For Kelsen, a judgment of ‘ought,’ i.e., a rule, is a valid norm if the issuer is authorized by another valid rule. The concept of validity in Kelsen’s analysis is complex and subject to controversy, but understanding it is crucial.