Formalism, 'Free Law', and the 'Cognition' Quandary: Hans Kelsen's Approaches to Legal Interpretation
Paulson, Stanley L., University of Queensland Law Journal
No one would care to claim that Hans Kelsen's work on legal interpretation counts as his finest hour. In his programmatic statements on interpretation, (1) he seems to be appealing to the doctrine of legal cognition as a means of supplanting the approach of traditional jurisprudence, an approach he views with great scepticism. In one major treatise, taking an altogether different tack, he ties principles of interpretation closely to the basic norm. (2) In his earliest work, Kelsen rejects the very idea of a psychological 'will' of the legislator, a rejection that can be seen as a rejection of intentionalism as a theory of legal interpretation. (3) Still another ingredient in the interpretation mix is the oft-voiced criticism of Kelsen's ostensible formalism. When criticism in this vein is set alongside Kelsen's own outspoken scepticism about the canons of legal interpretation in traditional jurisprudence, one begins to wonder whether any sense at all can be made of this panoply of approaches.
Kelsen's appeal to the doctrine of legal cognition as an alternative to the traditional canons of interpretation, all of which he rejects as mechanisms disguising the appeal to politics and ideology, gives rise to a fundamental question. Do the traditional canons of interpretation in fact yield to legal cognition? I argue, in section VIII of the paper, that in so far as Kelsen's legal philosophy is concerned, the canons are employed within what philosophers of science term the process of discovery, where the idea is to arrive at a suitable reading of the premisses of the legal argument. Kelsen's use of the doctrine of legal cognition, on the other hand, makes sense only within the process of justification, where the task is a post hoc reconstruction of the legal argument with an eye to showing its logical validity. Continental lawyers with a bent for abstract theorizing, informed over time by a mid-nineteenth century development aimed at 'rendering the law scientific' (the 'Verwissenschaftlichung des Rechts'), are at home with the process of justification. And it is their civil law perspective that I adopt here, with Hans Kelsen (4) counting as the quintessential proponent of the Verwissenschaftlichung des Rechts in the twentieth century. (5)
My central thesis is that Kelsen on the traditional canons of legal interpretation and Kelsen on legal cognition are at loggerheads, and that these approaches in his work make sense only if the distinction between discovery and justification is observed. A fair bit of stage-setting is required before this central thesis can be spelled out in section VIII. Specifically, I turn in section II to the view that Kelsen's legal philosophy is formalistic, a charge levelled by many writers. Then, turning to a surprise in Kelsen's work for those who are wedded to the charge of formalism, I examine in sections III and IV the Free Law Movement, a Continental counterpart to American Legal Realism, and show that Kelsen, following the lead of Hermann Kantorowicz, emphatically rejects the canons of legal interpretation familiar from traditional jurisprudence and endorses instead the utterly sceptical view that is the signature of the Free Law Movement. In sections V and VI, I examine the constructive element in Kelsen's approach to legal interpretation, flagging here the role played by the doctrine of legal cognition and inviting attention, too, to Kelsen's distinction between 'authentic' and 'juridico-scientific' interpretation. I take up, in section VII, Kelsen's own effort qua legal scholar to interpret the law, pointing to his failure here to follow his own theoretic precepts. In section VIII, as noted, I argue that legal interpretation and legal cognition in Kelsen's legal philosophy are properly addressed to distinct enterprises, discovery and justification. On discovery, I turn in section IX to Kelsen's doctrine of 'normative alternatives', underscoring the point that Kelsen offers no help at all on interpretation. …