Page:  of 627
 

2
Hans Kelsen's Earliest Legal Theory:
Critical Constructivism *

STANLEY L. PAULSON


INTRODUCTION

Legal positivism in the juridico-scientific tradition of the European
Continent is characterized by what might be called the facticity thesis:
The constructions of the law are ultimately 'reducible to', or explicable in
terms of, a concatenation of fact--for example, the will of the sovereign. 1
Shifting the idiom to a semantic counterpart of the facticity thesis, the
legal theorist of a reductive persuasion 'provide[s] eliminative defini-
tions of normative terms', 2 introducing instead non-normative, descrip-
tive terms, in what Joseph Raz has called the reductive semantic thesis. 3
Kelsen's conviction that the facticity thesis is wrongheaded drives his
theory, particularly in the very early work. In place of the legal positivist's

____________________
* Editors' note: This paper first appeared in the Modern Law Review, 59 ( 1996), 797-812;
the present version contains minor changes. The author would like to thank Okko
Behrends, Malte Dießelhorst, Ralf Dreier, and Cosima Möller (Göttingen), Bonnie
Litschewski Paulson ( St. Louis), and Stefan Hammer and Alexander Somek ( Vienna) for
very helpful criticism. Much earlier, the author turned to the nineteenth-century back-
ground of Kelsen's theory for a presentation at the first Siena Kelsen Symposium; he
remains grateful to Letizia Gianformaggio ( Ferrara) for the Symposium and, indeed, for
four more that followed.
1 By legal positivism, thus characterized, I have in mind an ideal type, not a particular
historical view. And it is this ideal type that Kelsen uses as a part of his strategy in forging a
'middle way' between legal positivism and natural law theory; see Stanley L. Paulson, "The
Neo-Kantian Dimension in Kelsen's Pure Theory of Law", Oxford Journal of Legal Studies,
12 ( 1992), 311-32, at 313-22. On the 'middle way' generally, see Joseph Raz, "The Purity of
the Pure Theory", in this volume, ch. 12; Deryck Beyleveld and Roger Brownsword,
"Normative Positivism: The Mirage of the Middle-Way", Oxford Journal of Legal Studies, 9
( 1989), 463-512.
2 Raz "Purity" (n. 1 above), § I.
3 Ibid. § II. I do not mean to suggest that the differences between the facticity thesis and
the reductive semantic thesis amount to a mere shift in idiom. For example, H.L.A. Hart's
theory reflects the facticity thesis but not the reductive semantic thesis; see generally
Stanley L. Paulson, "Continental Normativism and its British Counterpart: How Different
are they?", Ratio Juris, 6 ( 1993), 227-44, at 236-41. Both theses apply, however, to the many
theorists relegated by Kelsen to the legal positivist camp.

-23-

Questia, a part of Gale, Cengage Learning. www.questia.com

Publication Information: Book Title: Normativity and Norms: Critical Perspectives on Kelsenian Themes. Contributors: Stanley L. Paulson - editor, Bonnie Litschewski Paulson - editor, Michael Sherberg - transltr, Stanley L. Paulson - transltr, Bonnie Litschewski Paulson - transltr. Publisher: Clarendon Press. Place of Publication: New York. Publication Year: 1998. Page Number: 23.
    
This feature allows you to create and manage separate folders for your different research projects. To view markups for a different project, make that project your current project.
This feature allows you to save a link to the publication you are reading or view all the publications you have put on your bookshelf.
This feature allows you to save a link to the page you are reading, which you can later return to from Projects.
This feature allows you to highlight words or phrases on the publication page you are reading.
This feature allows you to save a note you write on the publication page you are reading.
This feature allows you to create a citation to the page you are reading that you can paste into your paper. Highlight a passage to include that passage as a quotation.
This feature allows you to save a reference to a publication you are reading for your bibliography or generate a bibliography you can paste into your paper.
This feature allows you to print the page you are reading, including your notes or highlights (IE users must have "print background colors and image" setting selected.)
This feature allows you to look up words in encyclopedia.
  About Questia Tools
Close Window  
Questia's powerful research tools allow you to highlight, take notes, bookmark and even create instant citations and bibliographies. To use these features and save hours of work, you must create a Questia account.
Need a Questia account?
Sign up for a FREE trial now. Save time, stress and hassle, and get better grades with trusted, online research.

» Click here for our free trial

Already have a Questia account? Login now!
Error
Working...
Printing Preferences
Format for black and white printer: On Off
Print highlights: On Off
Print notes: On Off
Choose one of the options for printing:
Print this page (No Charge)
Print pages to