Between Legal Technique and Legal Policy: Remarks on Hans Kelsen’s Constitutional Theory

Abstract

In this article I seek to re-interpret some of the problems characteristic of Kelsen’s constitutional theory. I shall do so by making use of the Kelsenian perspectives of the legal scholar and the policy-maker as developed in his Pure Theory of Law. I shall argue that in his discussion of constitutional policy issues, Kelsen’s treatises mix legal theoretical arguments (related to the perspective of the legal scholar) with the practical approach of legal policy. My main contention is that political principles are more important for the use of Kelsen’s legal theoretical concepts than usually acknowledged in generally accepted interpretations. The Pure Theory of Law is based on the rejection of autocratic legal thinking, and may be regarded as a formalistic theory of law for a democratic rule of law. Such a conclusion, however, also means that Kelsen’s views concerning the methodology of legal theory are no longer tenable.