A Kantian Interpretation of Kelsen’s Basic Norm

• Author: Mario García Berger
• DOI: http://doi.org/10.1111/raju.12266
• Published date: 01 March 2020
• Date: 01 March 2020

© 2020 The Author. Ratio Juris © 2020 John Wiley & Sons Ltd.

Ratio Juris. Vol. 33 No. 1 March 2020 (35–48)

A Kantian Interpretation

of Kelsen’s Basic Norm

MARIO GARCÍA BERGER

Abstract. This paper proposes a reading of Kelsen’s basic norm based on Kant’s regulative

ideas. I begin by exposing Kant’s conception of the principles of reason. Then I criticize an in-

terpretation of the basic norm along the same lines made by Stanley Paulson. Thirdly I analyze

two theses from Hermann Cohen that influenced Kelsen greatly and reinforce my stance on the

basic norm. Lastly, I explain how the Kelsenian tenet that the basic norm is the transcendental

grounding of the normativity of law can be comprehended based on the role the ideas of reason

play in the systematization of knowledge.

1. Introduction

It is well known that the work of the Marburg neo-Kantians, especially that of

Hermann Cohen (the leading figure of this philosophical movement), was one of the

main sources of influence on Hans Kelsen.1 Thus, for example, Cohen’s principle of

the origin is clearly mirrored in the doctrine of the basic norm (BN). The main thrusts

of this school were, on the one hand, to take Kant a step forward and purify his cri-

tique of pure reason of those alleged impurities that remained within it and, on the

other, to apply the Kantian picture of the nature of knowledge to the so-called cul-

tural sciences (Kulturwissenschaften). The impact of Kant’s philosophy on Kelsen was

thus mediated by the interpretation the Marburg neo-Kantians made of the critique

of pure reason. Although the doctrinal connection between Cohen and Kelsen has

drawn some attention, the analysis of those elements of Kant’s philosophy present in

the pure theory of law is comparatively nonexistent.2

However, I think a fruitful insight can be gained into Kelsen’s most intricated as-

pects if we turn directly our attention to some parts of Kant’s critique. The main pur-

pose of this paper is to put forward a reading of Kelsen’s doctrine of the basic norm

based on Kant’s regulative ideas of reason. It should be noted from the outset that

an effort in the same direction has been made recently by Stanley L. Paulson (2013,

1 Kelsen himself recognized the influence of Hermann Cohen. See, for example, the letter he

wrote to Renato Tréves (Kelsen 1987a).

2 On the relation between Kelsen and neo-Kantianism see, for example, Azpurua Ayala 1965;

Correas 1990; Edel 1998; Ferraro 1998; Hammer 1998; Luf 1998; Millas 1982; Pasher 1992;

Paulson 1987, 1991, 1992a, 1992b, 2000, 2003, 2007; Schmill 2003, 2004; Vicén Gonzáles 1985;

Welzel 1962.