The Purity Thesis

• Published date: 01 September 2018
• Date: 01 September 2018
• DOI: http://doi.org/10.1111/raju.12217
• Author: Stanley L. Paulson

© 2018 The Author. Ratio Juris © 2018 John Wiley & Sons Ltd

Ratio Juris. Vol. 31 No. 3 September 2018 (276 –306)

The Purity Thesis

STANLEY L. PAULSON*

Abstract. Hans Kelsen’s purity thesis is the basic methodological principle of the

Pure Theory of Law. Indeed, it is no exaggeration to say that virtual ly everything

that is peculia r to Kelsen’s legal theory stems from t he purity thesis. This inc ludes

Kelsen’s normativism or non‐naturalism and his polemic again st various dual-

isms in legal science. I set out Kelse n’s position on these issues after looki ng at the

nomenclature of purity in h is writings as well as the phi losophical and contextual

sources of purity as he underst ands them.

1. Introduction

“As pure as the driven snow” we say. Pristine. Untainted. Singula r. Kant, in his

Critique of Pure Reason, deems cognition to be “entitled pure if it is not mi xed with

anything extra neous” (Kant 1929, A11, 58). Hans Kelsen, author of the Pure Theory

of Law, underscores the significa nce of purity in his theory with a quotation from

Goethe, which adorns one of the title pages of Constitution al and Political Theory: “In

the arts and in s cience, as well as in deeds and action, everything depends on com-

prehending the objects purely and treating t hem in accordance with their nature”

(Kelsen 1925, v, quoting Goethe 1991, 744; Kelsen’s emphasis).

From the beginn ings of Kelsen’s lengthy classical or neo‐Kantian period,1 purit y

is front and centre. It has lent shape to his concept ion of legal theory, in terms of both

what he develops in its name and what he precludes.

Why purity? Kelsen believes that traditional views in legal theory—t hose in-

formed by psychologism and by naturalism, and those informed by morality, by

theology, and by politics—distort our understanding of the law. Eliminating t hese

distortions requi res a purity thesis. And t he stakes are high, a point that Kelsen

illustrates with a reference to the psychologism of his bête noi re in jurisprudence,

* For welcome suggestions and cr iticism I wish to thank Ca rsten Bäcker, Andreas Funke, Jörg

Kammerhofer, Hubert Rottleuth ner, Jan Sieckmann, a nd Kenneth Winsto n. Colleagues in

Genoa also offered welcome sug gestions and criticism on an e arlier draft of some of this ma-

terial; I am gratefu l to Pierluigi Chiass oni, Riccardo Guasti ni, Giovanni Batti sta Ratti, and

Maria Cristi na Redondo. Warm thanks, too, to Bon nie Litschewski Pauls on, who gave me

discerni ng and sanguine advice. And, a s always, I wish to thank Robert Ale xy for his gracious

hospitality and ma ny good conversations.

1 For aspects of a period ization of the phases in Kelsen’s development of his legal t heory, see,

e.g., Dias 2005, Paulson 1998 and 2017a. For a decidedly skeptical view of p eriodization, see

Chiassoni 2013.

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Ratio Juris, Vol. 31, No. 3 © 2018 The Author. Ratio Juris © 2018 John Wiley & Sons Ltd

The Purity Thesis

Georg Jellinek.2 Jellinek’s “thoroughly psychologistic orientation towards the char-

acter of legal theory” (Kelsen 1922a, 119)3 deprives the norm or the “ought” of mean-

ing. If this is so, Kelsen conti nues,

there will be no mea ning in the assert ions that something is legal ly allowed, something is le-

gally proscribe d, this belongs to me, that belongs to you, X has a rig ht to do this, Y is obligate d

to do that, and so on. In short, al l the thousands of statements in which t he life of the law is

manifest da ily will have lost their signi ficance. (Kelsen 1992, § 16 [33]; Kelsen 1960, § 26 [110])

Kelsen sets the stage here for everything that follows, effectively precluding tradi-

tional legal positivism i n one fell swoop.

Natural law theory fares no bet ter. At one point Kelsen goes so far as to identify

it with anarchism. He writes: “Every natural law theory, if it adheres to the idea of

pure natural law, must be ideal anarchism; anarchism—from earliest Christia nity to

modern Marxism—i s, essentially, natural law theory” (Kelsen 1928, § 2 [10]).4

Kelsen’s idea is that coercion, “an essential property of the law” (Kelsen 1928,

§ 2 [9]),5 evolves into a coercive order or system, and coercion is precisely what is

lacking in natural law theory. Thus, natural law theory is a species of anarchism,

which represents the absence of law. Kelsen contends elsewhere th at if “a higher,

moral order” were seen as the foundation of the law, then legal science would disap-

pear “without a trace into ethics” and the law would count as a part of the moral

order (Kelsen 1911a, 353; Kelsen 2008, 481–2). In short, neither of the traditional

fields—neither legal positivi sm nor natural law theory—comprehends its object, the

law, “purely [...] in accordance with [its] nature,” as called for in the quotation from

Goethe.

Can Kelsen’s wholesale purge of the traditional fields be defended? If programm atic

statements of the two fields count as contradictories—the affirmation of the claim, say,

that legal validity can always be determ ined apart from morality, along with the denial

of the claim—then of cou rse the two fields together exhaust t he possibilities.6 But Kelse n

sees things d ifferently. The ostensible contradictories, he contends, are mere contraries.

This line of arg ument is plausible in light of his non‐naturalistic legal po sitivism, which

is different in ki nd from the familiar, naturalist ic version.7 Kelsen, in other words, dis-

tinguishes t hree distinct kinds of legal theory, giving hi m a basis for claiming that

while both naturalistic legal positivism and natu ral law theory are mistaken, they do

not together exhaust the possibi lities. They are contraries.

Still, how can Kelsen gar ner support for his own view if he eliminates every

appeal to fact and value? He finds the support he needs in Kant’s transcendental

philosophy, allowing him to argue that his ow n legal theory survives the purge.

2 Jens Kerste n (2000, 170), in his magisterial treati se on Jellinek, spea ks of Kelsen’s

“an ti ‐reception.”

3 Psychologism is evident throughout Jell inek’s œuvre, for example, in Jellinek 1880, 16–17, and

1914, 337–60. See the quotation at n. 22.

4 On anarchism vis‐à‐vis Kelsen, see Vinx 2007, 50–6.

5 Kelsen’s view that coercion is an es sential property is cha llenged by Schauer 2015, 36, 43.

6 The juxtaposit ion is, of course, altogether familiar. It goes under the n ame of “positivism”

and “nonpositivism” in Alexy’s work. See, e.g., Alexy 2008a, 284–90.

7 Kelsen sees Ca rl Schmitt’s legal theory as stil l another example of naturalism. See Pauls on

2016. A recent apologia on behalf of a natura listic legal theory is Leiter 2007; a much earlier

statement stems from the Swedi sh legal theorist Karl Olivecrona (1940).