The Pure Theory of Law
Neo-Kantian Methodology
I shall now go into the question of my more immediate studies as a student in the university and my veering toward Kelsen’s Pure Theory of Law. I cannot say with precision why Hans Kelsen was for me a more strongly attractive teacher than Othmar Spann. Spann’s range was without a doubt much larger, both philosophically and historically, than the range of Kelsen’s work. What attracted me, so far as I recollect, was the precision of analytical work that is peculiar to a great lawyer. The success of the Pure Theory of Law, and its continuing importance in the philosophy of law, lets one sometimes forget that Kelsen was a practical lawyer who drafted the Austrian constitution of 1920 and became a member of the Verfassungsgerichtshof. His commentary on the constitution he drafted shows his juridical acumen to its greatest advantage. What I learned from Kelsen, I should say, is the conscientious and responsible analysis of texts as it was practiced in his own multivolume work and in the discussions in his seminar. His work was inseparable, of course, from the Pure Theory of Law itself, which furnished a logical analysis of a legal system. This analysis of the system, culminating in Kelsen’s conception of the Grundnorm (basic norm), still stands today. It has been improved in numerous details, as for instance by Merkl’s elaboration of the Delegationszusammenhang as well as by the expansion of the system by Verdross beyond the constitutional Grundnorm to the fundamental norm of international law. There have been further refinements through the studies of the younger men like Felix Kaufmann, Fritz Schreier, and Emanuel Winternitz, but on the whole Kelsen’s analysis was complete and could be improved only in this or that detail. This fact explains why there has been no great further development of the Pure Theory of Law. It was the splendid achievement of a brilliant analyst, and it was so good that it hardly could be improved upon. What Kelsen did in this respect still stands as the core of any analytical theory of law. I later used this core, with some improvements of my own, in the courses in jurisprudence that I gave in the School of Law at LSU.1 I should like to stress that there never has been a difference of opinion between Kelsen and myself regarding the fundamental validity of the Pure Theory of Law.
My differences with Kelsen’s theory began to evolve gradually. That I was not a simple adherent can be gathered from the fact that I made my own Ph.D. with both Spann and Kelsen as doctor-fathers, a feat greatly admired by the younger people at the time because the universalism of Spann and the neo-Kantianism of Kelsen were considered to be incompatible. The differences evolved from ideological components in the Pure Theory of Law, which are superimposed on the logic of the legal system proper but do not affect its validity. They can be removed while leaving the core of the theory intact. This superimposed ideology was the neo-Kantian methodology, which determined the field of a science by the method used in its exploration—in this case, by the logic of the legal system. Since in the conventional terminology of the time the field that Kelsen represented as a professor was Staatslehre (political theory), and since neo-Kantian methodology circumscribed by its method the logic of the legal system, Staatslehre had to become Rechtslehre (theory of law), and everything that went beyond Rechtslehre could then no longer be a part of Staatslehre. That, of course, was an untenable position. At the time, I did not have a full understanding of the rather primitive semantic games involved in such misconstructions, but at least I sensed them. It was obviously impossible to deal with the problems of the Staat, and of politics in general, while omitting everything except the logic of legal norms. Hence, my difference from Kelsen developed through my interest in the materials of a political science that had been excluded from Staatslehre understood as Rechtslehre. In 1924 I published my first essay, of rather dubious scientific quality, entitled “Reine Rechtslehre und Staatslehre,”2 in which I confronted the reine Rechtslehre with the materials dealt with by German Staatslehre of the early nineteenth century. Already at that time I conceived the task of the future political scientist to be that of reconstructing the full range of political science after its restriction to the core of the Normlogik.
That requires a few remarks about the problems of neo-Kantianism as it presented itself to me as a student in the 1920s. There were several neo-Kantian schools. The one that was dominant in the person of Kelsen was the so-called Marburger Schule of Hermann Cohen. Cohen, in his interpretation of Kant’s Critique of Pure Reason, concentrated on the constitution of science by the categories of time, space, and substance—science meaning Newtonian physics as understood by Kant. This pattern of constituting a science through the categories applied to a body of materials was the model for the construction of the Pure Theory of Law. Everything that would not fit into the categories of Normlogik could no longer be considered science. There were, however, other neo-Kantian schools, above all the so-called Southwest German School represented by Wilhelm Windelband and Heinrich Rickert, who dealt with the constitution of the subject matter of historical sciences by “values.” That branch of methodology goes back to the 1870s, when Albrecht Ritschl, the Protestant theologian, distinguished for the first time between Tatsachenwissenschaften (sciences of facts) and Wertwissenschaften (sciences of values). The terms chosen betray the origin of the problem in the early dominance of the natural sciences as the model of science. Against their prestige, poor fellows like theologians, historians, and incipient social scientists had to establish that their fields were sciences, after all, too.
That is how “values” were invented. In Rickert’s conception, values were certain cultural forces about whose reality nobody could have any reasonable doubt, such as state, art, and religion; the materials selected and related to these values would be the subject matter of the science of art, religion, and the state. This technique of reconstituting the historical and social sciences by the so-called wertbeziehende Methode (i.e., by reference to a value) suffered from the grave defect that values are highly complex symbols, dependent for their meaning on the established “culture” of Western liberal society. It was very well to assume the Staat to be a value that determined the selection of materials, but this selection would run into all sorts of difficulties because the model of the Staat was the Western nation-state, and it would be difficult to bring the Greek polis under this head and still more difficult to bring an Egyptian empire under it. Moreover, values had to be accepted. And what did one do if somebody did not accept them, like for instance certain ideologists who wanted to establish a science by relating materials not to the value of the state but to the value of its withering away? The apocalyptic, metastatic dreams of, for instance, Marxist ideology, going back to Fichte’s Johannine conception of the withering away of the state, simply did not fit into the constitution of a political science under the value of the “state.”
1. Voegelin’s LSU law lectures are published in CW, vol. 27, The Nature of the Law and Related Legal Writings.
2. English translation in CW, vol. 7, chap. 2—as the author’s second publication.