The pure theory as ideal type: defending Kelsen on the basis of Weberian methodology.

AuthorShivakumar, Dhananjai
PositionLegal positivist Hans Kelsen

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.

  1. The Problem: Defending Kelsenian Jurisprudence

    1. 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.

      1. The Static Aspect of Law: Sanction-stipulating Legal Norms

        For Kelsen, law in its static dimension consists of norms related to human behavior in the following way: Certain states of affairs (generally human acts or omissions) are conditions for the application of coercive sanctions.(7) Offenses (or "delicts") are simply the human acts or omissions that trigger a prescribed sanction. From Kelsen's positivistic perspective, an agent's act or omission constitutes a legal offense if and only if there exists a valid norm in that agent's positive legal order holding that a sanction ought to be applied to her because of her act or omission.(8) Legal norms hold that officials ought to administer sanctions, be they criminal punishments or civil penalties, deprivations or forced actions, under certain conditions. Kelsen argues that the threat of palpable coercive action by legal officials is what distinguishes a legal order from any other system of normative prescriptions, such as a moral system.9 Whereas moral norms address many of the same kinds of human behavior as legal norms, only legal norms regulate human behavior by specifying sanctions to be performed by legal officials. Also, as discussed in the next section, Kelsen distinguishes between law and morality by arguing that legal norms are valid only if their promulgation is authorized by other legal norms, regardless of whether they cohere or conflict with moral norms. Kelsen's static theory of law, with its emphasis on the coercive sanction, reduces the traditional vocabulary of jurists (invoking myriad terms such as "duty," "right," "legal obligation," "legal authorization," etc.) to a common denominator: In every instance, a norm exists ordering sanctions under certain triggering conditions.(10)

        Kelsen's static legal theory is unusual because it does not fit squarely within either the natural law or positivistic traditions as each had developed in the early twentieth century.(11) Kelsen's pure theory of law relies, for the purposes of identifying law, neither on moral criteria (in contrast to natural law theories), nor on the empirically observable attributes of judicial decisionmaking or social rule-following (approaches to defining law championed by American legal realism).(12) What does it mean to treat law as a set of norms? Kelsen states, most generally, that "[b]y `norm' we mean that something ought to be or ought to happen, especially that a human being ought to behave in a specific way."(13) Kelsen adds that a "[n]orm' is the meaning of an act by which a certain behavior is commanded, permitted, or authorized."(14) By stating that every legal norm is the meaning of a human action, Kelsen underscores his legal positivism: Every legal norm has an identifiable human origin, distinct from any connection a legal norm may have to moral norms. Yet while Kelsen shares with other legal positivists the view that law is a coercive order created by human action and identifiable as a human creation,(15) he also maintains that a pure theory of law cannot identify law through observable causal or other sociological criteria. That is, the existence of a law in a given legal order does not boil down to the probability that a legal sanction will follow a particular offense. Instead, law denotes the existence of a validly promulgated norm expressing that a sanction ought to be delivered when certain conditions hold.(16)

        Kelsen responds to the objection that many norms promulgated by authoritative legislative or other legal organs do not explicitly state coercive sanctions by arguing that every such norm, if it is a legal norm, must be linked to other legal norms that do specify a coercive sanction. More specifically, Kelsen states that legal norms take one of two forms. Either they are, as described above, sanction-stipulating norms, or they are linked to a sanction-stipulating norm.(17) This linkage may be one of authorization or one of dependence. An authorizing norm does not explicitly stipulate a sanction, but determines in some way the promulgation of a sanction-stipulating norm. A dependent norm describes an offense without explicitly stating the sanction, but it is linked to another norm that does tie the offense to a sanction.

        Thus, from a Kelsenian perspective, every law, at a minimum, influences or shapes when and how sanctions are to be administered, although a given piece of legislation might not explicitly command a sanction upon certain triggering events. As an example, consider the passage by a local zoning board of a rule permitting only residential housing in a given area "A." According to Kelsen, this means that there has been an act of will (the zoning board's) whose meaning is that some coercive action ought to follow upon the further use of land in such an area for commercial or other nonresidential purposes. This zoning rule is, in addition, a dependent norm. It does not itself specify a sanction but was promulgated against and assumes a background of previously enacted rules assigning fines or other penalties for zoning violations. As a result, the following legal norm now exists, addressed to a legal official: "If X has set up a nonresidential use in area A, then official Y ought to impose a fine (or other sanction) on X."

      2. The Dynamic Aspect of Law: A Process-oriented Account of Validity

        Kelsen's static theory of law defines the function of the norms that are the building blocks of his theory. It indicates that the law at a given time is a coercive order consisting of norms car-rying conditional sanctions. Kelsen's dynamic theory of law addresses the process by which legal norms are created and provides a process-oriented account of how these norms attain validity. Two concepts figure prominently in Kelsen's analysis of how valid legal norms are promulgated: the "basic norm" (Grundnorm), and the hierarchical structure, or step-structure (Stufenbau), of the legal system.(18) Kelsen bases his approach on the general...

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