Kelsen’s Metaethics

Abstract

Much has been written about the legal philosophy of Hans Kelsen, but his moral philosophy, especially his metaethics, has not been much discussed. In this article, I therefore want to consider Kelsen’s metaethics and discuss its implications for Kelsen’s legal philosophy. I argue (1) that although in his earlier writings, such as the first edition of Reine Rechtslehre, Kelsen was content to reject moral cognitivism in the shape of non-naturalism, and although he might have waivered between emotivism and metaethical relativism around the time of General Theory of Law and State, his mature view – as expressed in, and around the time of, the second edition of Reine Rechtslehre – was that of a metaethical relativist. I also argue (2) that his rejection of moral cognitivism was part of the reason why Kelsen insisted on methodological purity in the study of law in the sense of a separation of law and morality, and why he rejected natural law theory; and (3) that it was the reason why he defended the more general ideal of value-neutral science; and (4) that his more specific commitment to metaethical relativism was the reason why he defended democracy as well as tolerance in the shape of a constitutionally guaranteed freedom of thought. Next, I argue (5) that although it might seem difficult to square a commitment to metaethical relativism with the view that law is necessarily normative in the strong sense contemplated by Kelsen, the reason why Kelsen can nevertheless coherently hold that law is necessarily normative in this sense is that he conceives of the normativity of law not as a necessary property of law, but as consisting in the use of normative language by judges, attorneys, legal scholars, and others. Finally, I consider (6) the possibility that in his post-1960 phase Kelsen abandoned metaethical relativism for moral fictionalism, but argue (7) that, on the whole, a relativist interpretation of Kelsen’s late legal philosophy is to be preferred to a fictionalist interpretation.