Opinion: Law and the Science of Law in the Work of Kielsen

Hans Kielsen is perhaps the greatest example of an author who became famous for the wrong reasons. At least in Brazil, there is a gap between theory Kielcinian And what is said about her? Of course, like every author, Kielsen is subject to criticism. It turns out that such criticism often falls on a theoretical scarecrow, and it is not an exaggeration to say that the ideas of this author still need to be known by a significant part of Brazilian legal doctrines. [1].

Without ignoring the breadth of Kielsen’s production, this article will focus on a particular aspect that is still poorly understood: the difference between law and the science of law. Before Clarification: The Analyzes to be Made of It for Reference in the Second Edition of Pure Law Theory, launched in 1960, a modified and greatly expanded version compared to the first, from 1934. Among the expansions, and the inclusion of an eighth chapter of Judicial Judgment and an article on Justice problem [2], in which Kielsen made a series of critiques of the doctrine of natural law. In fact, the topic is more than closely related to another specific text.

At the beginning of the twentieth century, there was a common understanding that the social sciences were far from the natural sciences. For Kielsen, this position was the result of the absence of a pure legal science, independent of other branches of knowledge, such as psychology, sociology, ethics and political theory. So, in this sense, Kelsen builds a pure law theory. In the author’s words: “When pure theory undertakes to define knowledge in the face of these disciplines, it does so not by ignoring or, let alone denying, this connection, but because it attempts to avoid a systematic syncretism that obscures the essence of legal sciences and weakens the limits imposed by the nature of its subject matter.” [3].

Kelsen then goes on to develop a legal theory devoid of any political ideology and independent of other elements of the social and natural sciences; Independent theory conscious of the specificity of the subject studied and faithful to it. As the author himself says, his goal was to bring the science of law to a level the condition real science, because only then will it be appropriate to explain the necessary elements ”[…] Knowing the law, making its results as close as possible to the ideal of all sciences: objectivity and accuracy ” [4].

Specifically to achieve this objective model, pure law theory is intended to be a formal theory that can be applied in any country, regardless of the legal traditions with which there is a link and the social and political context; In short, it is a theory about[…] Positive law in general, not the private legal system” [5]. Which explains the legal phenomenon taken in the summary.

From this it is clear that Kielsen’s goal was not to separate law from ethics and politics, but legal science from ethics and politics, by creating a scientific methodology capable of objectively describing what law is, without taking into account what it should be. Hence the focus was on the form of law that is universal and not on its changing content. According to the author, value judgments cannot be subject to logical analysis nor subject to objective knowledge, and therefore, they cannot be the subject of a real science like that which he proposes. [6].

It is important to note, in this sense, that pure It is a theory not a law, Kelsen built a pure theory for the study of an unclean being. Law, for Kielsen, is the result of political disagreements and the assertion of values ​​and is inseparable from the domains of politics and morals. The science of law must be pure, and its role is the abstract description of the values ​​of the legal norms that have been produced in a particular legal system. For the avoidance of doubt:

The depoliticization that pure law theory requires is related to the science of law and not to its subject, the law. Law cannot be isolated from politics because it is an instrument of it. Its creation and implementation are political and involve functions determined by value judgments. But the science of law can and should be separated from politics if, in the final analysis, it is to be regarded as a science. [7].

Therefore, the knowledge of positive law, which is responsible for legal sciences, must be objective and clear, so as not to be influenced by the value judgments of the legal theorist, which are always subjective. The Pure Theory of Law is a theory about real law, which seeks to explain how it is created and how it presents itself in legal systems. Whether or not a law is just is left out of the analysis, even because Kelsen is considered a moral relativist, is a personal question. It is the imprecision and subjectivity inherent in ethics that cannot affect a science of law which, like any real science, does not evaluate its subject, either for approval or disapproval, but only rationally explains it. [8].

Indeed, although the act that creates the law is affected by all kinds of considerations of moral, political, economic, social, etc., the product of that act, i.e. the legal base, is independent with respect to these areas, and thus interpretation of the law is possible without regard to the facts and values ​​that led to him. Note that this does not mean, for Kelsen, that the content of the legal rules is irrelevant. Its aim was not to eliminate any and all evaluative attitudes in relation to law, but only to emphasize that this is not a task to be carried out by the science of law, but by the politics of law. [9].

It is clear, then, that the accusation that Kelsen separates law from morals is not worth flourishing. What he did was simply to identify the moments in which other social systems influence the creation of law, so as to determine what should be the subject of description by the legal theorist. For Kelsen, the legal dynamics that the theorist must describe is precisely the moment in which politics and morality influence the law, such that what the author has sought to avoid through a purely descriptive theory is the unwarranted politicization of the legal system.

Finally: in Kelsen there is a distinction between law and the science of law. The first is the second study subject. Purity refers to theory, not its object (law). Kelsen goes so far as to state explicitly that law cannot be separated from politics. [10]. What must be separated from politics is the science of law, whose role is to describe the law and the rules that compose it in a neutral way. This issue becomes clearer in Chapter 8 of Pure Law Theory. [11], when Kelsen uses the normative framework metaphor and differentiates between interpretation as an act of knowledge, performed by legal theorists, and interpretation as a will, performed by law enforcement. However, there is another topic that must be covered in a later specific article.