Kelsen’s Response to Legal Realism

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Jeffrey Thayne

Kelsen presented what he called the “Pure Theory of Law.” He believed that his theory was free from ideological influences. Ideology, he said, is wanting or wishing the world were a certain way. A theory of law, he said, cannot describe law as we wish it to be, but only as it is. “The Pure Theory,” he said, “desires to present the law as it is, not as it ought to be; it seeks to know the real and possible, not the ‘ideal,’ the ‘right’ law. In this sense, the Pure Theory is a radical realistic theory of law, that is, a theory of legal positivism.”

Kelsen’s goal was to produce a scientific study of law. He believed that this requires law to be seen objectively, without reference to values or ideology. Just as one cannot make moral evaluations about the law of gravity or the existence of life on mars, Kelsen wanted to remove the possibility of making moral evaluations of the existing legal order. Moral evaluations get in the way of describing law way it is, because we inevitably describe it in the context of the way we want it to be.

According to Letwin, Kelsen sterilized law of it moral quality by claiming that “justice is merely an irrational ideal. … When justice is used in the ordinary sense, it signifies nothing but a rationalization of personal preferences pretending to a spurious universality.” In other words, Kelsen denied the existence of universal standards by which we can measure law. Letwin continues: “A norm can be ‘just’ or ‘unjust’ only for those who do or do not desire what the norm prescribes, although whoever pronounces a social institution to be just or unjust may be unaware that he or she is expressing a merely private interest.”

Kelsen, however, preserved the prescriptive character of law. Although we cannot say what law ought to be, law can tell us what we ought to do. This is because Kelsen describes law as prescriptive norms. Letwin explains, “A norm states what ‘ought’ to be done, but to describe the law as a system of norms is to say not what it ought to be, but only what it is.”

According to Kelsen, “A valid law should be obeyed … because it has been issued by someone who is authorized by a higher norm to make such a law.” To avoid infinite regress of norms, Kelsen presuppose a hypothetical norm that was never enacted (the first mover, in a sense). This presupposition is that of a “law-making authority whose norms are, by and large, observed, so that social life broadly conforms to the legal order based on the hypothetical norms.”

In the end, Kelsen attempted to create a scientific study of law, one that did not require moral evaluations of the present legal system, but simply described the way it actually functioned.

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