Foundations for a critical reading of Hans Kelsen in the XXI century: towards a kelsenian classical model

Abstract

Kelsen’s students know that the Pure Theory of Law is not a book but a “school” that has evolved during the twentieth century. The identification of a single “classic model of Kelsen” in philosophy of law cannot be achieved, due to the complexity of his thought. It is possible, however, to present Kelsen’s ideas according to his most striking statements. One can affirm that Kelsen sought to develop a purist epistemological model for a science of law, which has become prominent by avoiding all metaphysics and also by formulating a rigorous and systematic rational method. Kelsen’s intention was to raise a theoretical monument, claiming the ultimate victory of pure reason as the best and final proposal to the scientific knowledge of the law. Among the problem that his proposal had to face was the distinction between law and morality, the separation of the concepts of validity and effectiveness as a corollary of his methodological dualism of “is” and “ought” and the relationship between reason and will. Kelsen wanted to solve all these issues by his the transcendental argument. But a rigorous analysis of these problems surrounding the basic norm (Grundnorm) reveals that critics were pertinent and really have challenged the analytical rigor of the Pure Theory of Law, leading the author to change his ideas in the course of the several editions of the book. The purpose here is to revisit this historical moment from a comprehensive approach, since it’s in the basis of any investigation in jurisprudence nowadays.