Purity and Constraints in Legal Theory

Some Remarks on Paulson’s Analysis of the Neo-Kantian Dimension of Kelsenian Theory of Law

Abstract

Hans Kelsen rejects both natural law theories and fact-based positivism. Rather, following certain ideas inspired by the neo-Kantian philosophy, he attempts to pre- serve a clear separation between law and facts as well as between law and morality. As it is well-known, Kelsen’s Neo-Kantian ideas are combined with other theses extracted from a positivistic vision of the law. However, as Stanley L. Paulson shows in his very fine paper about the limits of the kelsenian doctrine, Neo-Kantism and positivism cannot be easily articulated in a coherent picture. In particular, Paulson analyses two closely connected problems. On the one hand, the relation between legal interpretation and the ‘irregular’ creation of norms (i.e., the problem of con- straints) and, on the other hand, the limits of purity (i.e., the philosophical problem). In this paper, I will briefly comment on both problems mentioned by Paulson. First, I deal with the philosophical problem and I focus on (i) the distinction between ‘Is’ and ‘Ought’ and (ii) the rejection of Natural Law Theories. Second, I analyse the problem of constraints and I pay attention to certain consequences that stem from the validity of irregular norms.