Kelsen's Legal Theory: the Final Round

Abstract

Whereas the traditional view has it that if willed, then legally valid, Kelsen inverts the pattern to read that if legally valid, then willed. He makes comparable inversions in criminal law and in public law,4 all of them marking a radical departure from the tradition. 'Will', the explicans of the law in traditional legal positivism or voluntarism, survives in Kelsen's work only as a derived notion. 'Law is norm', Kelsen writes,5 not 'will', and, over a period of nearly half a century, he works at an 'epistemic justification' of the notion. His effort is known by the name he gave to it-the 'Pure Theory of Law'. The theory is 'pure', he explains, because it is free of the 'alien' elements that are part of volitional or * Professor of Law and Professor of Philosophy, Washington University, St Louis, USA. t Hans Kelsen, General Theory of Norms, translated from the German by Michael Hartney, Oxford: Clarendon Press, 1991. ISBN 0-19-825217-X, Ix, 465 pages, ?55 (hardback only), (hereafter, in the notes, I use the abbreviation 'GTN').