Theory and policies of pure theory of law. On some of Ferrajoli’s criticisms to Kelsen

Abstract

In order to defend Kelsen from the criticisms advanced by Ferrajoli in his book La logica del diritto, the essay intends to clarify the “politics of law” underlying some basic epistemological and theoretical choices of Kelsen: the postulate of the unity of the legal knowledge, the theory of legal norms as hypothetical-conditional prescriptions on the use of force, the “tacit alternative clause” theory, and interpretive scepticism. These theses of the pure theory of law allow Kelsen to argue for some interesting conclusions on the mission of legal science, on the opportunities and risks of constitutionality review, and on the role of the judiciary. Contrary to what Ferrajoli maintains, none of these theses is either self-contradictory or incompatible with legal positivism.