Methodological Syncretism in Kelsen's Pure Theory of Law*
In Pure Theory of Law, first published in 1960, Kelsen makes two claims that might be taken to imply an espousal of Legal Idealism. These are: a ‘doctrine of presupposition’, the view that the characterization of a norm as a legal norm, and the characterization of an order of norms as a legal order presupposes a ‘basic norm’, which specifies that the constitution of the positive, effective, coercive order ought to be applied and obeyed; and the contention that the presupposition of a basic norm is the transcendental-logical foundation of legal science, that which makes possible the designation of laws as rules that ought to be applied and obeyed. This chapter first considers the doctrine of presupposition and argues that it should be interpreted as a doctrine of moral presupposition, thus creating a paradox. It then considers Kelsen's arguments for the compatibility of such a doctrine with Legal Positivism under three headings that are persistent themes in Pure Theory of Law: ‘Positivity, Effectiveness, and Legal Validity’; ‘Kelsen's Moral Relativism’; and ‘The Non-Prescriptive Nature of Legal Interpretation’. It is argued that none of Kelsen's arguments for Legal Positivism are compelling in the context of the doctrine of moral presupposition. It is further contended that the doctrine of moral presupposition is inconsistent with Legal Positivism and that Kelsen's arguments for these two doctrines derive from inconsistent methodological bases.
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