Working Paper No. 03-50:
Hans Kelsen and the Logic of Legal Systems
Date Posted: 2003
Abstract (below) | Full text (most recent) on SSRN
Hans Kelsen's formalism and Kantianism have been barriers to an appreciation of his work in the United States. This article offers a sympathetic reading of Kelsen's approach in legal theory by drawing analogies between it and the writings of Gottlob Frege. For Frege, the subject matter of logic is the necessary relations between linguistic meanings. These relations can be seen as necessary only on the assumption that linguistic meanings are abstract objects that cannot be reduced to anything empirical. For this reason Frege rejected psychologism in logic. Like many other late-nineteenth century anti-psychologists, Frege offered a Neo-Kantian account of how non-empirical knowledge of meanings is possible.
Analogously, Kelsen argued that legal meanings are abstract objects. Kelsen proposed an analysis of the necessary relations between legal meanings — a logic of legal systems — that is similar to the Fregean logician's account of language. And like the logical anti-psychologists, Kelsen offered a Neo-Kantian account of how knowledge of legal meanings is possible.
Although I do not undertake to defend the details of Kelsen's approach, I hope to make his third way between empiricist and natural law theories approaches in jurisprudence more understandable and attractive to American audiences.