Kelsen: A Purely Empty Theory of Law

Abstract

Kelsen's position is founded upon an epistemology which is both objectivist, regarding the existence of truths, and subjectivist, regarding normative positions. This epistemological bifurcation leads to a variety of contradictions in Kelsen's positions, and explains his reversals regarding the possibility of normative inference, the real or metaphorical existence of a fundamental norm, and constructivism. Aside from these contradictions, this 'split' explains certain terminological ambiguities: Kelsen confounds conditionals (statements in the form of 'if then') with imperatives under one term, 'norm'. This ambiguity is not resolved through the distinction between and statement, for the distinction between legal norm and legal statement is a distinction between the domain of legal science and of law. The confusion of an order (an imperative statement) and a conditional (a statement in the form of if then) remains, for the distinction between legal statement and statement of legal science refers to another thing entirely: the epistemological distinction between two different domains of study, and not to the epistemological distinction between two different intentional entities. Reversals on constructivism, normative inference, and the real or metaphorical character of the fundamental norm reveal that Kelsen's theory suffers from a fundamental conceptual flaw in the definition of his basic unit of analysis. The result is a theory that is not merely devoid of prescriptive utility (no normative content) but also is internally incoherent. Table of Contents Kelsen : A Purely Empty Theory of Law 1 A. Normative Inference 3 1. Refusal of Normative Inference 4 2. The Normative Syllogism 13 3. Demonstration of Legal Inferencing 15 B. Critique: 18 1. Terminology 18 a. Polysemy 18 b. Ambiguity: 20 c. Confusion 21 d. What neutrality? 22 2. Useless Complexity 23 a. Terminological Multiplication 23 b. Multiplication of syllogisms 23 c. Imputation: A useless Distinction 24 d. A Special Juridical Logic? 24 e. The Posthumous Character of the ATN 24 3. Methodological Apory 25 4. Problem of Postulats 25 a. Separation of law and morality 25 b. The Basic Norm 25 5. Tautology of the Basic Norm 26 6. Rationalisation 26 7. From Subjective to Objective Signification 28 C. Conclusion 28