Kelsen’s Metaethics

• Published date: 01 June 2022
• Author: Torben Spaak
• Date: 01 June 2022
• DOI: http://doi.org/10.1111/raju.12343

© 2022 The Author. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

Ratio Juris. Vol. 35 No. 2 June (158–190)

Kelsen’s Metaethics

TORBEN SPAAK

Abstract. In this article, I argue, inter alia, that Kelsen’s mature view— as expressed in, and

around the time of, the second edition of Reine Rechtslehre— was that of a metaethical relativist,

and that the commitment to metaethical relativism was the reason why Kelsen defended de-

mocracy as well as tolerance in the shape of a constitutionally guaranteed freedom of thought.

I also consider the possibility that in his post- 1960 phase Kelsen abandoned metaethical relativ-

ism for moral fictionalism, but argue that, on the whole, a relativist interpretation of Kelsen’s

late legal philosophy is to be preferred to a fictionalist interpretation.

1. Introduction

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 cog-

nitivism in the shape of non- naturalism, and although he might have wavered

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 dif-

ficult 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.

This is an open access article under the terms of the Creative Commons Attribution- NonCommercial- NoDerivs License,

which permits use and distribution in any medium, provided the original work is properly cited, the use is non- commercial

and no modifications or adaptations are made.

159

Ratio Juris, Vol. 35, No. 2 © 2022 The Author. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

Kelsen’s Metaethics

I begin with an outline of the Pure Theory of Law and of Stanley Paulson’s period-

ization of the Pure Theory (Sections 2 and 3). I then say a few words about metaethics

in general (Section 4) and consider Kelsen’s metaethics in more detail (Sections 5 and

6). Next, I discuss the implications of this metaethics for Kelsen’s legal philosophy

(Sections 7– 11) and proceed to consider, first, the difficulty of combining a strong

conception of legal normativity with a relativist metaethics (Section 12), and then the

possibility of a fictionalist interpretation of Kelsen’s late legal philosophy (Section

13). I conclude by arguing that a relativist interpretation of Kelsen’s late legal phi-

losophy is, on the whole, preferable to a fictionalist interpretation of said philosophy

(Section 14), and by pointing out that my discussion of Kelsen’s metaethics in this

article is meant to be a rational reconstruction, not an exegesis, of Kelsen’s writings

(Section 15).

2. The Pure Theory of Law: A Short Outline1

As is well known, Kelsen maintains that his theory of law is pure, in the sense that it

holds that law— conceived as a system of valid norms— is conceptually independent

of both nature and morality. The theory, he explains, is called a pure theory

because it aims at cognition focused on the law alone, and because it aims to eliminate from this

cognition everything not belonging to the object of cognition, precisely specified as the law. That

is, the Pure Theory aims to free legal science of all foreign elements. This is its basic methodolog-

ical principle. (Kelsen1992 [1934], 7; see also 1960, 1)

What Kelsen means by the separation of law and nature is that law exists in a realm

beyond time and space, in the “world of the ought,”2 and that legal science must

therefore not invoke natural— as distinguished from non- natural— properties in the

analysis of law and legal phenomena. His idea is that the peculiar property that turns

an alleged judicial decision, say, into a (genuine) judicial decision cannot find room

in the world of time and space (Kelsen1960, 2). For, he reasons, if we analyze a judi-

cial decision, or a piece of legislation, we will find that it consists of two elements: one

element that belongs to the world of time and space, such as a human action or an

event, and another element that does not exist in the world of time and space, namely,

a specifically legal, normative meaning, which legal norms confer on the relevant ac-

tion or event (ibid., 2– 4). This normative meaning is that an action ought to be per-

formed or ought to be omitted, and it is this property that Kelsen(1999 [1945], 37, 61)

refers to as validity or, occasionally, as bindingness, and that many today refer to as

normativity.

The reason why Kelsen holds that legal scholars must separate law from nature

is that he holds that law is necessarily normative, and that analyzing the concept of

law or other legal concepts in terms of natural properties, say, analyzing the concept

of a legal duty in terms of the likelihood that a person who flouts the law is likely to

1 The text in this section is an expanded version of Spaak2013, 233– 6.

2 As Kelsen (1984 [1923], 8) puts it, “[t]he difference in principle between these two forms of

thought lets ‘Is’ and ‘Ought’ appear as two separate worlds.” The German original: “Die

prinzipielle Verschiedenheit beider Denkformen läßt Sein und Sollen als zwei getrennte Welten

erscheinen.”

Torben Spaak

160

Ratio Juris, Vol. 35, No. 2© 2022 The Author. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

suffer a sanction, amounts to “denying the ‘ought’” (Kelsen1992 [1934], 32– 3; 1960,

107– 13) and thus to misconceiving the nature of law. As he puts it, “[i]f one deprives

the norm or the ‘ought’ of meaning, then there will be no meaning in the assertions

that something is legally allowed, something is legally proscribed, this belongs to

me, that belongs to you, X has a right to do this, Y is obligated to do that, and so on”

(Kelsen1992 [1934], 33).

The other aspect of the purity ideal, then, is the conceptual separation of law from

other ideal phenomena, such as morality (ibid., 15): “Here, above all, the task is to

unfetter the law, to break the connection that is always made between law and mo-

rality. […] what is rejected is simply the view that the law as such is part of morality,

and that therefore every law, as law, is in some sense and to some degree moral.”

The idea here is that the validity of positive law does not depend on the validity of a

nonrelative (or, as Kelsen says, an absolute) morality (Kelsen1960, 68) and, more spe-

cifically, that “any content whatever can be law,” so that “there is no human behavior

that would be excluded simply by virtue of its substance from becoming the content

of a legal norm” (Kelsen1992 [1934], 56). I have elsewhere referred to this as the status

version— as distinguished from the content version— of the separation thesis of legal

positivism (see Spaak and Mindus2021, 9– 10).

The conceptual separation of law from nature leads in turn, by way of Hume’s

law, to the theory of the basic norm (Grundnorm). Since one cannot deduce an “ought”

from an “is” (Kelsen1960, 5), a person who wishes to conceive of the legal raw mate-

rial as a system of valid, that is, binding, norms needs to presuppose the basic norm,

which can be formulated schematically as follows: “Coercion is to be applied under

certain conditions and in a certain way, namely, as determined by the framers of the

first constitution or by the authorities to whom they have delegated appropriate

powers” (Kelsen1992 [1934], 57).3 The presupposition of the basic norm, Kelsen(1999

[1945], 116) explains, is necessary for anyone who wants to conceive of law as a sys-

tem of valid norms, while remaining within the framework of legal positivism.

Kelsen emphasizes, however, that although one may presuppose the basic norm,

one does not have to, which is to say that although one may conceive of law as a

system of valid norms, one does not have to. For example, Karl Olivecrona(1939)

argues that there is no such thing as binding force (or normativity), and that law is

best understood as a set of independent imperatives, whose function is not to confer

rights and impose duties, but to cause the subjects of law to behave in certain ways

(on this, see Spaak2014, chaps 7– 8). On Kelsen’s analysis, then, the validity of law

is conditional upon the presupposition of the basic norm, or, alternatively, as Joseph

Raz(2009c [1979], 303– 8) proposes, is seen from the point of view of the person pre-

supposing the basic norm; and, as we have just seen, the presupposition of the basic

norm in turn is conditional upon the wish of the person making the presupposition

to conceive of law as a system of valid norms.

As Kelsen sees it, the basic norm plays an epistemological role, not a justificatory

one, in the analysis:

3 Note that Kelsen operates with a moral basic norm as well. As he sees it, moral norms are

valid by virtue of their substance or content, in the sense that the content of such norms can be

subsumed under the content of the basic norm, as the particular under the general. Thus, on

Kelsen’s analysis, whereas the legal basic norm is dynamic, the moral basic norm is static. See,

e.g., Kelsen1992 [1934], 55– 6.