A ‘Justified Normativity’ Thesis in Hans Kelsen's Pure Theory of Law?

This chapter explores the justified normativity thesis in Kelsen's legal philosophy, with particular attention to the works of Raz and Alexy. It raises doubts about whether anything as ambitious as justified normativity can be attributed to Kelsen. Some of these doubts are philosophical, others are prompted by a reading of Kelsen's texts. The philosophical doubts stem from the problems associated with transcendental arguments. That is, the appropriate argument on behalf of justified normativity in Kelsen's legal philosophy is a Kantian or Neokantian transcendental argument, which proves,...

This chapter explores the justified normativity thesis in Kelsen's legal philosophy, with particular attention to the works of Raz and Alexy. It raises doubts about whether anything as ambitious as justified normativity can be attributed to Kelsen. Some of these doubts are philosophical, others are prompted by a reading of Kelsen's texts. The philosophical doubts stem from the problems associated with transcendental arguments. That is, the appropriate argument on behalf of justified normativity in Kelsen's legal philosophy is a Kantian or Neokantian transcendental argument, which proves, however, to be unworkable. And textual support in Kelsen's writings is scant for the attribution to him of a justified — or contentual — normativity thesis. This cannot come as a surprise. From the very beginning, Kelsen was of the opinion that psychologism and naturalism, prominent in fin de siècle legal science on the European continent, were utterly wrong-headed. He sought to provide an alternative, and it took the form of a normativity thesis — what might be termed the nomological normativity thesis — that is altogether different from the justified normativity thesis. It does precisely the work that Kelsen would have it do, providing an alternative to psychologism and naturalism.