Academic journal article
By Shivakumar, Dhananjai
The Yale Law Journal , Vol. 105, No. 5
Although Hans Kelsen is widely regarded as the most influential legal positivist of his generation,(1) his "pure theory" of law has often struck theorists in the Anglo-american legal tradition as an exercise in theoretical system-building out of touch with legal reality.(2) This is due in large part to Kelsen's Kantian (or neo-kantian) methodology. This methodology, by claiming to identify and analyze the necessary conditions of legal cognition, appears to distance the concerns of the legal scholar from the problems facing both practicing lawyers, on the one hand, and social theorists and reformers, on the other. This Note seeks to reduce the strangeness of Kelsenian jurisprudence(3) by analyzing Kelsen's concept of law as a Weberian ideal type. When cast in a Weberian light, Kelsen's analysis of legal systems best displays its practical, critical power.
But much more is at stake than merely presenting Kelsen's theory in a more accessible manner. In fact, Kelsen's brand of legal positivism requires a new methodological grounding to save it from critics who have attacked its Kantian roots. Weber's method supplies that grounding. Kelsen's theory is remarkably amenable to a Weberian defense(4) because, like a Weberian ideal type, it systematically draws certain aspects of our social reality into sharp focus. Nor does recasting Kelsen's pure theory of law in Weberian terms require any significant changes to Kelsen's "pure" concepts of law and of legal validity. To the contrary, this Note argues that Kelsen's analysis of legal validity can be purer when presented as a Weberian model. A Weberian reading of the pure theory of law underscores Kelsen's unique and illuminating answer to the enduring question, "What is law?"
Part I of this Note provides an overview of Kelsen's concept of law and his analysis of legal systems, and then identifies the justificatory problems of Kelsen's methodology. Part 11 defines "Weberian methodology," discussing Weber's model of social-scientific method and his definition of "ideal type" concepts. Part Ill pursues a theoretical reconciliation of Kelsen's pure theory with Weberian methodology and then defends as successful ideal types two fundamental components of Kelsen's pure theory: his analysis of legal norms (static legal theory) and his analysis of legal validity (dynamic legal theory). Kelsen's definition of law and account of legal validity are useful models that serve to highlight coercion and discretion in modern, bureaucratic legal orders. Part IV concludes by suggesting that an emphasis on the instrumental usefulness of his concept of law makes Kelsen's theory more attractive than other, less one-sided theories of law.
I. The Problem: Defending Kelsenian Jurisprudence
A. Overview: Kelsen's Pure Theory of Law
Kelsen intends his pure theory of law to serve as a general account of the nature and function of law. The theory thus applies to any existing legal system. It "attempts to answer the question what and how the law is, not how it ought to be."(5) Kelsen develops his answer in two domains: The pure theory of law addresses the "static aspect" of law--what law is at any given moment--as well as the "dynamic aspect" of law--how a legal system functions over time.(6) Each of these aspects of the pure theory of law represents an important contribution to legal theory. First, its static conception of law rejects both ethical and sociological elements in setting out the conditions for valid law. For Kelsen, law is reducible neither to moral imperatives, nor to empirical observations of human action. Second, its dynamic conception of law is broader in scope than many rival philosophies of law. Kelsen traces the entire process through which valid legal rules are promulgated, from the general provisions of a constitution to specific instances of adjudication, and seeks to describe the roles played by the various organs of a legal system, be they administrative, adjudicatory, or legislative. …