Hans Kelsen and Southwest German Neo-Kantianism on Natural Law: Transcendental Philosophy beyond Metaphysics and Positivism

Abstract

This chapter argues that Kelsen’s discussion and conception of the foundations of law misunderstands essential aspects of the foundations of normativity. Kelsen seems to miss the point of Kant’s transcendental turn in conceiving philosophical foundations, so important for the development of the philosophy after Kant, not least for the neo-Kantians. The main schools of neo-Kantianism have their central, common feature in stressing and rejuvenating exactly Kant’s transcendental turn. This emphasis on the transcendental turn is prevalent in much of the Southwest neo-Kantian remarks on natural law. Kelsen, however, repeatedly presents Kant as a metaphysical thinker. This distinguishes Kelsen from the leading schools of neo-Kantianism, who consider Kant a post-metaphysical philosopher. The influence of neo-Kantianism, especially that of the Southwest School, on Kelsen should be seen, therefore, in an instrumental rather programmatic sense. Accordingly, the chapter will apply essentials of Kantian and neo-Kantian philosophy to Kelsen’s analysis of law. From this, it will be argued that the hypothesis of law which underlies Kelsen’s legal positivism is an inadequate expression of the idea of law.