The problem of anti-psychologism in Hans Kelsen’s “Pure Theory of Law”

This article examines the nature and specificity of the criticism of psychologism as a theoretical-methodological orientation towards studying law and its interpretation, which in particular was associated with such version of interpretation of law as the “Pure Theory of Law” of Hans Kelsen. More in-depth representations of modern legal theory in understanding the patterns of law and its essential aspects requires the due coverage of the history of psychological and anti-psychological approaches towards law that form of the major oppositions in the development of legal though at the turn of the XIX – XX centuries. Multiple aspects of H. Kelsen's legal views are yet to be examined, including the correlation of his doctrine with other doctrines, as well as the nature of substantiation of law and the analysis of legal phenomena. The scientific novelty of lies in the fact that based on the analysis of legal views of the Austrian jurist Hans Kelsen wirh his pronounced claim to exclude all “non-legal’ elements, it is revealed that a significant part of conceptual-logical apparatus of Kelsen’s teaching and the approaches towards substantiation of law were psychological in nature. Unlike the objective-idealistic positions of H. Kelsen, legal Neo-Kantianism was methodologically more accurate in elucidation of interrelation between the actual legal phenomenon and the role of gnoseological methods of perception and comprehension of law. The assessment of H. Kelsen’s doctrine as the theory of law is subject to criticism in this article, since in reality it is limited to the issues of legal methodology.

Direito e ciência na teoria pura do direito E o problema da liberdade em Kelsen

O estudo destina-se a abordar a relação entre o direito e a ciência na Teoria Pura do Direito e o problema da cientificidade na literatura de Hans Kelsen, inicia-se a abordagem com a análise entre a norma jurídica e a proposição jurídica, após uma realiza-se uma abordagem entre a causalidade (ser) e a imputação (dever-ser), expõe-se a ideia kelseneana de norma fundamental e por fim, coloca-se o complexo problema da liberdade na obra deste importante autor da literatura jurídica concluindo que o respostas a este problema só serão encontradas quando atendidas as exigências da ciência. O que se observa é que a norma fundamental defendida por Kelsen é necessária sim para o teórico do direito, aquele que tem a função de explicar a validade do direito, explicar de onde vem a força do direito - se do ser ou do dever-ser, ou seja, de um fato ou de uma norma -, mas não para o prático do direito, pois a norma fundamental, como já frisado, é uma norma hipotética, não tem conteúdo, e é justamente disso que precisam os operadores do direito para aplicarem a norma. The study is intended to address the relationship between law and science in the Pure Theory of Law and the problem of scientificity in Hans Kelsen's literature. an approach is made between causality (being) and imputation (should-be), it exposes the Kelsenean idea of ​​fundamental norm and, finally, the complex problem of freedom in the work of this important author of legal literature is presented, concluding that the answers to this problem will only be found when the demands of science are met. What is observed is that the fundamental norm defended by Kelsen is indeed necessary for the legal theorist, who has the function of explaining the validity of the law, explaining where the force of law comes from - whether of being or of the should-be , that is, of a fact or a norm -, but not for the legal practitioner, as the fundamental norm, as already emphasized, is a hypothetical norm, has no content, and this is precisely what the operators of the law need to apply the standard..

The Academic Portrait of the Creator of the Pure Theory of Law. Several Facts from Thomas Olechowski’s Book Entitled Hans Kelsen. Biographie eines Rechtswissenschaftlers. Tübingen: Mohr Siebeck, 2020 (1027 pp.)

The Academic Portrait of the Creator of the Pure Theory of Law was written by Thomas Olechowski, a professor of the University of Vienna, and a historian of law with an established academic position, having outstanding expertise in the field of the history of the system of law in Austria in the 19th and 20th centuries. Olechowski collected impressive source material - mainly archival, including Kelsen’s extensive correspondence, university and administrative files connected with all the stages of his life and academic activity, and interviews with still-living persons (oral history) who had met Kelsen directly or indirectly. Owing to the obtained material, often secured through detailed source query in Austrian, Czech, German, and American archives, the author managed to correct and complete many details from his subject’s life and works. Hence, the reviewed biography of Kelsen provides a great deal of new information, which presents a view of his life and academic achievements through a multithreaded method. Various examples of little-known or completely unknown facts from H. Kelsen’s biography will be presented in the review.

Law and psychoanalysis: close intertwining between Hans Kelsen and Sigmund Freud

This paper offers an original analysis of the interconnections between law and psychoanalysis through the personal and academic exchanges between Hans Kelsen (1881-1973) and Sigmund Freud (1856-1939). After a brief analysis of the similar cultural background of both scholars as Jews who grew up in fin-de-siècle Vienna, the text focuses on the personal encounters between them and subsequently analyzes Kelsen's reception of Freud's work in “The State-Concept and Social-Psychology” (Der Begriff des Staates und die Sozialpsychologie). Kelsen’s text was originally published in 1922 in Freud’s review, Imago, resulting from a conference he held at the Viennese Psychoanalytical Society. This paper analyzes the relevance of Freud’s theory to the construction of the Pure Theory of Law, especially regarding his concept of the state. Furthermore, it presents a new hypothesis for the subjective reasons behind Kelsen’s attraction to psychoanalysis, and for his admiration of Freud, which it tries to understand through the personal context of Kelsen’s life. Finally, it deals with the possible influence of Kelsen on Freud's work, especially with regards to the term "Super-Ego."

Imperial Diversity, Fractured Sovereignty, and Legal Universals: Hans Kelsen and Eugen Ehrlich in their Habsburg Context

This essay places Eugen Ehrlich and Hans Kelsen afresh in their common context, the late Habsburg Empire. It reframes Ehrlich's legal sociology and Kelsen's pure theory of law as co-original and connected responses to the problem of legal universals under conditions of fractured sovereignty and imperial diversity. At first glance, Kelsen and Ehrlich seem antipodes, an impression apparently confirmed by their prickly exchange in the 1910s: while Kelsen made universality reside in the formal features and sequences of imputation that held the normative order together, Ehrlich claimed that every normative system which purported to be meta-social and meta-cultural merely camouflaged its local conditions of emergence. Once resituated in their Habsburg environment, these strategies can be read as articulations of a broader set of common proclivities. Ehrlich's and Kelsen's proficiency in the empire's techniques of plurality management enabled them to demystify the state and to dismantle the nation: both perceived the state as a juristic construction, hence they unmasked its alleged social, cultural, and ontological unity as a delusion. The same held true for the nation: Ehrlich challenged its supremacy by showing that social relationships—“associations”—cut across national divides, while Kelsen delegitimized the nation's status as a rights-bearing collective and blurred the distinction between citizens and alien residents, working toward the civic enfranchisement of the latter. This dovetailed with Ehrlich's and Kelsen's unmaking of the distinction between private and public law: the false belief in the latter's superiority over the former served to license arbitrary rule. Both jurists deterritorialized state sovereignty by highlighting the brittleness of spatial dominion and the artificiality of political boundaries: Ehrlich and Kelsen discovered a gamut of sovereign authorities with overlapping spatial areas of jurisdiction that coexisted within the Habsburg polity. This in turn permitted them to effectively transcend the distinction between domestic and international law: while, according to Ehrlich, the state fizzled out on the local level, Kelsen redescribed it from a global perspective, turning it into a mere subordinate organ of world law. Ehrlich's legal pluralism and Kelsen's pure theory were the two most successful juristic legacies of the Habsburg polity whose imprint they bore. Both creatively reworked Habsburg constitutional reality into templates of legal order that survived the empire's demise.

Kelsen’s Enemies

Why is Kelsen such a consequential and controversial, perhaps even misunderstood, political thinker and actor? Who wants to make us believe that Kelsen was a naïve idealist dreaming up a Kantian peace and throwing white sand at battle cruisers? The chapter is a rebuttal of the many clichés propounded by Schmittians and the other pseudo-realists that are thrown at Kelsen and the project of a Pure theory of law, state, and international legal order. The fact that the FBI was after Kelsen as an alleged communist is as ridiculous as it is tragic, and even two of his own students, Hans J. Morgenthau and John H. Herz, did not seem to understand legal positivism’s cold analysis of political and international life. The same goes for the fact that Kelsen was, actually, a tough Freudian human nature realist who turned the tables on natural law ideologues. Who’s naïve now?

Validity and efficacy of international law according to the pure theory of law

At the beginning of its development, the science of international law was inextricably linked to the doctrine of natural law. The latter was seen as the basis of international law. The very problem of the foundations of international law became acute in the 19th century, when the prevailing legal positivism abandoned the idea of natural law. All proposed solutions were based on the idea of self-obligation of sovereign states. Some of them questioned the very existence of international law, while others required the introduction of explicit fictions. In an attempt to solve this problem, the pure theory of law developed by Hans Kelsen and his students proposed a theory of a hierarchical structure of international and domestic law. The relationship between the levels of the normative system is based on the empowering norms, which transfer the property of legal validity to the lower norms created on their basis. The concept of validity corresponds to the concept of efficacy of the norm. The interrelation of validity and efficacy of legal norms in international law differs significantly from their interrelation in domestic law; the study of this relationship in Kelsen’s theory was the main purpose of this study. The structure of international law according to Kelsen is a pyramid, the highest level of which is customary international law, based on the basic norm of international law that establishes the binding force of international custom. In this case, from the point of view of the pure theory of law, a special role in international law is played by the principle of effectiveness — recognition of the existing factual state of affairs as legitimate. The greater importance of this principle in international law is explained by the absence of a centralized system of coercion in the latter because decentralized legal order does not allow the application of organized sanctions in instances of violation of international legal norms.