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The Pure Theory As Ideal Type: Defending Kelsen on the Basis of Weberian Methodology

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The Pure Theory As Ideal Type: Defending Kelsen on the Basis of Weberian Methodology The Pure Theory as Ideal Type: Defending Kelsen on the Basis of Weberian Methodology Dhananjai Shivakumar Although Hans Kelsen is widely regarded as the most influential legal positivist of his generation,' his "pure theory" of law has often struck theorists in the Anglo-American legal tradition as an exercise in theoretical system- building out of touch with legal reality.2 This is due in large part to Kelsen's Kantian (or neo-Kantian) methodology. This methodology, by claiming to identify and analyze the necessary conditions of legal cognition, appears to distance the concerns of the legal scholar from the problems facing both practicing lawyers, on the one hand, and social theorists and reformers, on the other. This Note seeks to reduce the strangeness of Kelsenian jurisprudence3 1. See, e.g., H.L.A. Hart, Kelsen Visited, 10 UCLA L. REV. 709,728 (1963) (describing Kelsen as "the most stimulating writer on analytical jurisprudence of our day"); Graham Hughes, Validity and the Basic Norm, 59 CAL. L. REV. 695, 695 (1971) ("As we move toward the last quarter of the 20th century, there can no longer be any doubt that the formative jurist of our time is Hans Kelsen."). 2. See, e.g., CARLETON K. ALLEN, LAW IN THE MAKING 51 (5th ed. 1951) ("[The 'pure' essence distilled by the [Kelsenian] jurist is a colourless, tasteless, and unnutritious fluid which soon evaporates."); KARL N. LLEWELLYN, JURISPRUDENCE: REALISM IN THEORY AND PRACrICE 356 n.5 (1962) (describing Kelsen's pure theory of law as "utterly sterile"). The objection that Kelsen's legal theory is too detached from politics and purposeful human activity to contribute to our understanding of the nature of law was not raised exclusively by English and American jurisprudes. The German scholar Carl Schmitt also attacked Kelsen on such grounds. See CARL SCHMITT, POLITICAL THEOLOGY: FOUR CHAPTERS ON THE CONCEPT OF SOVEREIGNTY 18-21 (George Schwab trans., MIT Press 1985) (1922). 3. General references to Kelsen's legal thought in this Note are to his pure theory of law as presented in HANS KELSEN, PURE THEORY OF LAW (Max Knight trans., 1967) [hereinafter PURE THEORY OF LAW]. Kelsen first published this revised and enlarged second edition of the Pure Theory of Law in German as Reine Rechtslehre in 1960, 26 years after the publication of the original Reine Rechtslehre. See Michael Hartney, Introduction to HANS KELSEN, THE GENERAL THEORY OF NORMS ix, ix-xii (Michael Hartney trans., 199 1) [hereinafter GENERAL THEORY OF NORMS] (providing bibliographical information). The theory Kelsen presents in the second edition of the Pure Theory of Law was refined and developed over many years. In the years following its publication, Kelsen wrote on numerous topics in legal theory but never again produced a single systematic restatement of his pure theory of law. Id. at xi. Kelsen scholars disagree about whether Kelsen's work after 1960 offers a sharp break with the past and a new conception of the internal consistency of legal systems, or whether deep continuities remain. Compare Stanley L. Paulson, Toward a Periodization of the Pure Theory of Law, in HANS KELSEN'S LEGAL THEORY: A DIACHRONIC POINT OF VIEW 11, 15, 46-47 (Letizia Gianformaggio ed., 1990) (arguing that; after 1960, Kelsen adopted a "will theory" of law at odds with his earlier views) with Mauro Berberis, Kelsen, Paulson, and the Dynamic Legal Order, in HANS KELSEN'S LEGAL THEORY: A DIACHRONIC POINT OF VIEW, supra, at 49, 54-58 (emphasizing continuity, based on evolving conception of dynamic order of legal norms, between Kelsen's early and late work). This Note seeks to defend the pure theory of law as presented in the second 1383 1384 The Yale Law Journal [Vol. 105: 1383 by analyzing Kelsen's concept of law as a Weberian ideal type. When cast in a Weberian light, Kelsen's analysis of legal systems best displays its practical, critical power. But much more is at stake than merely presenting Kelsen's theory in a more accessible manner. In fact, Kelsen's brand of legal positivism requires a new methodological grounding to save it from critics who have attacked its Kantian roots. Weber's method supplies that grounding. Kelsen's theory is remarkably amenable to a Weberian defense because, like a Weberian ideal type, it systematically draws certain aspects of our social reality into sharp focus. Nor does recasting Kelsen's pure theory of law in Weberian terms require any significant changes to Kelsen's "pure' concepts of law and of legal validity. To the contrary, this Note argues that Kelsen's analysis of legal validity can be purer when presented as a Weberian model. A Weberian reading of the pure theory of law underscores Kelsen's unique and illuminating answer to the enduring question, "What is law?" Part I of this Note provides an overview of Kelsen's concept of law and his analysis of legal systems, and then identifies the justificatory problems of Kelsen's methodology. Part II defines "Weberian methodology," discussing Weber's model of social-scientific method and his definition of "ideal type" concepts. Part III pursues a theoretical reconciliation of Kelsen's pure theory with Weberian methodology and then defends as successful ideal types two fundamental components of Kelsen's pure theory: his analysis of legal norms (static legal theory) and his analysis of legal validity (dynamic legal theory). Kelsen's definition of law and account of legal validity are useful models that serve to highlight coercion and discretion in modem, bureaucratic legal orders. Part IV concludes by suggesting that an emphasis on the instrumental usefulness of his concept of law makes Kelsen's theory more attractive than other, less one-sided theories of law. I. THE PROBLEM: DEFENDING KELSENIAN JURISPRUDENCE A. Overview: Kelsen's Pure Theory of Law Kelsen intends his pure theory of law to serve as a general account of the nature and function of law. The theory thus applies to any existing legal system. It "attempts to answer the question what and how the law is, not how it ought to be."5 Kelsen develops his answer in two domains: The pure theory edition of the Pure Theory of Law. See infra note 49 for further discussion of Kelsen's posthumously published General Theory of Norms. 4. This Note "defends," but does not "justify," Kelsen's concept of law. I use the term "defend" throughout this Note to indicate that the goal is not to demonstrate the truth of Kelsen's theory, but rather its usefulness. 5. PuRE THEORY OF LAW, supra note 3, at 1. 1996] Defending Kelsen 1385 of law addresses the "static aspect" of law-what law is at any given moment-as well as the "dynamic aspect" of law-how a legal system functions over time.6 Each of these aspects of the pure theory of law represents an important contribution to legal theory. First, its static conception of law rejects both ethical and sociological elements in setting out the conditions for valid law. For Kelsen, law is reducible neither to moral imperatives, nor to empirical observations of human action. Second, its dynamic conception of law is broader in scope than many rival philosophies of law. Kelsen traces the entire process through which valid legal rules are promulgated, from the general provisions of a constitution to specific instances of adjudication, and seeks to describe the roles played by the various organs of a legal system, be they administrative, adjudicatory, or legislative. 1. The Static Aspect of Law: Sanction-StipulatingLegal Norms For Kelsen, law in its static dimension consists of norms related to human behavior in the following way: Certain states of affairs (generally human acts 7 or omissions) are conditions for the application of coercive sanctions. Offenses (or "delicts") are simply the human acts or omissions that trigger a prescribed sanction. From Kelsen's positivistic perspective, an agent's act or omission constitutes a legal offense if and only if there exists a valid norm in that agent's positive legal order holding that a sanction ought to be applied to her because of her act or omission. Legal norms hold that officials ought to administer sanctions, be they criminal punishments or civil penalties, deprivations or forced actions, under certain conditions. Kelsen argues that the threat of palpable coercive action by legal officials is what distinguishes a legal order from any other system of normative prescriptions, such as a moral system.9 Whereas moral norms address many of the same kinds of human behavior as legal norms, only legal norms regulate human behavior by specifying sanctions to be performed by legal officials. Also, as discussed in the next section, Kelsen distinguishes between law and morality by arguing 6. Kelsen divides his pure theory between a theory of law "in its state of rest," which focuses on law as a system of norms, and a theory of law "in motion," which focuses on the processes by which legal norms are created. See PURE THEORY OF LAv, supra note 3, at 70-71. In neo-Kantian fashion, Kelsen writes that he develops these two parts of the pure theory by examining how legal "cognition" conceives of different aspects of law. See id. at 70. 7. See id. at 44-54, 70, 108-14. While it is easy to characterize substantive criminal law provisions in this fashion, Kelsen, like Rudolf von Jhering before him, claims that coercive force stands behind all laws. See generally RUDOLF VON JHERING, LAW AS A MEANS TO AN END (Isaac Husick trans., 1913) (1877-83) (arguing that law is dependent upon coercion and that states have a monopoly on the right to coerce).
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