The continuity of the role of logic in law in Hans Kelsen’s theory

Abstract

This paper tries to analyse in detail the arguably different positions that Hans Kelsen has defended in his professional career about the role of logic in law. It begins by identifying the different phases of Kelsen’s legal-theoretical work, the Pure Theory of Law, and particularly the main features of the last phase, the so-called late doctrine (Spätlehre). It shows that most interpreters affirm a radical change in the late doctrine and that the radical change would be represented by dramatic changes in three of Kelsen’s fundamental theories: the argued change in the theory of legal interpretation, the argued change in the doctrine of the basic norm and the argued change about the role of logic in law. Then, the paper focuses on the third topic, the role of logic in law. It challenges the traditional and majoritarian view according to which Kelsen would have made a radical change in his thought and places two new theses: the first thesis affirms that, (i) contrary to the majoritarian view, there is continuity regarding the role that logic plays in law along the legal works of Kelsen. It is also argued that this continuity is not broken, as many suggest, in Kelsen’s late doctrine, and therefore not in the posthumous work General Theory of Norms (1979). The second thesis affirms that (ii) the position considered by the majority of the interprets as Kelsen’s habitual position on the role of logic in law, that is, his defence of the indirect applicability of logic to legal norms through its direct applicability to legal propositions, which was developed in the second edition of the Pure Theory of Law (1960), is indeed the dissonant passage of Kelsen’s works regarding this topic. Yet, it is argued that this small discrepancy does not mean at all a rupture in Kelsen’s project of developing a legal-normative theory on Kantian basis, that is, does not mean abandoning the development of a Pure Theory of Law.