“Pure Theory of Law” as Critical Legal Studies avant la lettre. Why Choose Kelsen’s Realist Theory of Interpretation over Schmitt’s Political Theory for the Left?

Abstract

It is well known that left-wing Critical Legal Theory (CLS) often analyses the political power aspect of the law with Carl Schmitt. However, it ignores that Schmitt’s political theory of law did not reveal the ideology behind the law, but rather concealed it with meta-legal concepts. According to the thesis of this article, a true critique of the legal ideology is possible primarily through the “Pure Theory of Law”. Kelsen’s theory is not the theory of a “pure law”, but rather an anti-ideological (in this sense: pure) description of the political character of the law and, above all, of its application. In this respect, the political power of the judiciary, which is an important topic in Critical Legal Theory, is more visible with Kelsen than with Schmitt. Kelsen’s anti-ideological goal becomes particularly clear if we follow Michel Troper’s and Riccardo Guastini’s interpretation of the “Pure Theory of Law”.