Kantian Elements in Kelsen’s Pure Theory

One of the most important attempts to extend Kant’s transcendental idealism to new areas was Kelsen’s Pure Theory of Law. Building on Kant’s analysis of the transcendental conditions of our knowledge of nature, he argued e.g. in Reine Rechtslehre (1934) for an analogous theory of the transcendental conditions of ‘normative experience’. Just as the principle of causality states ‘If A is, B must be’, equally the law of legality (Rechtsgesetz) states ‘If A is, B ought to be’. Both propositions have a formal character. The principle of causality does not make any claim about how things are in themselves, but merely states a necessary rule for our cognition of nature. Similarly, the law of legality does not make ‘claims’ about actual legal facts, but only describes the relation between the concepts of legal condition and legal consequence. As Stanley Paulson (1992) has shown, this ‘transcendental’ claim entails the rejection of two positions that turn out to be comparable to two horns of a Kantian antinomy, namely natural law theory and empirical positivism. The Pure Theory is therefore transcendental or ‘pure’, because it neither evaluates positive law, by means of pre-given moral constraints, nor does it describe positive law as a mere fact of nature. There is, however, a remarkable feature of the Pure Theory, which is directly related to its transcendental character and which Kelsen is very keen to mention: its anti-ideological character. For example, he believes that the Pure Theory will dispel the popular belief that unlike private law, public or state law is not proper law, but just based on ‘power’. The implication here is that if this mythical dichotomy between state and law is dispelled, the true nature of the state and its laws will be understood. Rulers will not be tempted to mistake their position for one that is free from legality – a tendency Kelsen makes out even in democracies. And, we may add, this will in turn increase the confidence of the citizens in the legitimacy of the state. Evidently, this has important consequences even for our democracies today. At any rate, since the Pure Theory has beneficial, and thus normative, consequences, it follows that there is something puzzling at the very core of one of the most important extensions of Kant’s transcendental method to legal theory. As I will show, it is no coincidence, although little explained in the literature, that Kelsen developed a defence of liberal democracy, along Kantian lines, and offered critical accounts of totalitarian systems while he was developing the Pure Theory throughout the 1920s to 1940s. Literature: Kaufmann, Kritik der neukantischen Rechtsphilosophie, 1921 Kelsen, Hauptprobleme der Staatsrechtslehre, 1911 Kelsen, Vom Wesen und Wert der Demokratie, 1929 Kelsen, Reine Rechtslehre, 1934 Kelsen, The Political Theory of Bolshevism, 1949 Kelsen, “Was ist die reine Rechtslehre?”, 1953 Paulson, “Zur neukantischen Dimension der Reinen Rechtslehre”, 1988 Paulson, “The Neo-Kantian Dimension of Kelsen’s Pure Theory of Law”, 1992 Wielowski, Die Neukantianer in der Rechtsphilosophie, 1914