The pure theory as ideal type: Defending Kelsen on the basis of Weberian methodology

Yale Law Journal

Volumn 105, Issue 5, 1996, Pages 1383-1414

  Shivakumar, Dhananjai ^a  

^a NONE

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EID: 17744382608     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797179     Document Type: Article

References (140)

1. See. e.g., H.L.A. Hart, Kelsen Visited, 10 UCLA L. REV. 709, 728 (1963) (describing Kelsen as "the most stimulating writer on analytical jurisprudence of our day");
2. Graham Hughes, Validity and the Basic Norm, 59 CAL. L. REV. 695, 695 (1971) ("As we move toward the last quarter of the 20th century, there can no longer be any doubt that the formative jurist of our time is Hans Kelsen.").
3. See, e.g., CARLETON K. ALLEN, LAW IN THE MAKING 51 (5th ed. 1951) ("[T]he 'pure' essence distilled by the [Kelsenian] jurist is a colourless, tasteless, and unnutritious fluid which soon evaporates.");
4. KARL N. LLEWELLYN, JURISPRUDENCE: REALISM IN THEORY AND PRACTICE 356 n.5 (1962) (describing Kelsen's pure theory of law as "utterly sterile"). The objection that Kelsen's legal theory is too detached from politics and purposeful human activity to contribute to our understanding of the nature of law was not raised exclusively by English and American jurisprudes. The German scholar Carl Schmitt also attacked Kelsen on such grounds.
5. See CARL SCHMITT, POLITICAL THEOLOGY: FOUR CHAPTERS ON THE CONCEPT OF SOVEREIGNTY 18-21 (George Schwab trans., MIT Press 1985) (1922).
6. General references to Kelsen's legal thought in this Note are to his pure theory of law as presented in HANS KELSEN, PURE THEORY OF LAW (Max Knight trans., 1967)
7. [hereinafter PURE THEORY OF LAW].
8. Kelsen first published this revised and enlarged second edition of the Pure Theory of Law in German as Reine Rechtslehre in 1960 ,
9. 26 years after the publication of the original Reine Rechtslehre.
10. See Michael Hartney, Introduction to HANS KELSEN, THE GENERAL THEORY OF NORMS ix, ix-xii (Michael Hartney trans., 1991 )
11. [hereinafter GENERAL THEORY OF NORMS] (providing bibliographical information).
12. The theory Kelsen presents in the second edition of the Pure Theory of Law was refined and developed over many years. In the years following its publication, Kelsen wrote on numerous topics in legal theory but never again produced a single systematic restatement of his pure theory of law. Id. at xi. Kelsen scholars disagree about whether Kelsen's work after 1960 offers a sharp break with the past and a new conception of the internal consistency of legal systems, or whether deep continuities remain.
13. Compare Stanley L. Paulson, Toward a Periodization of the Pure Theory of Law, in HANS KELSEN'S LEGAL THEORY: A DIACHRONIC POINT OF VIEW 11, 15, 46-47 (Letizia Gianformaggio ed., 1990) (arguing that, after 1960, Kelsen adopted a "will theory" of law at odds with his earlier views)
14. with Mauro Berberis, Kelsen, Paulson, and the Dynamic Legal Order, in HANS KELSEN'S LEGAL THEORY: A DIACHRONIC POINT OF VIEW, supra, at 49, 54-58 (emphasizing continuity, based on evolving conception of dynamic order of legal norms, between Kelsen's early and late work).
15. This Note seeks to defend the pure theory of law as presented in the second edition of the Pure Theory of Law.
16. See infra note 49 for further discussion of Kelsen's posthumously published General Theory of Norms.
17. This Note "defends," but does not "justify," Kelsen's concept of law. I use the term "defend" throughout this Note to indicate that the goal is not to demonstrate the truth of Kelsen's theory, but rather its usefulness.
18. PURE THEORY OF LAW, supra note 3, at 1.
19. Kelsen divides his pure theory between a theory of law "in its state of rest," which focuses on law as a system of norms, and a theory of law "in motion," which focuses on the processes by which legal norms are created. See PURE THEORY OF LAW, supra note 3, at 70-71. In neo-Kantian fashion, Kelsen writes that he develops these two parts of the pure theory by examining how legal "cognition" conceives of different aspects of law. See id. at 70.
20. See id. at 44-54, 70, 108-14. While it is easy to characterize substantive criminal law provisions in this fashion, Kelsen, like Rudolf von Jhering before him, claims that coercive force stands behind all laws. See generally RUDOLF VON JHERING, LAW AS A MEANS TO AN END (Isaac Husick trans., 1913) (1877-83) (arguing that law is dependent upon coercion and that states have a monopoly on the right to coerce).
21. PURE THEORY OF LAW, supra note 3, at 111-14 ("No immanent quality, no relation to a meta-legal natural or divine norm is the reason for qualifying a specific human behavior a delict; but only and exclusively the fact that the positive legal order has made this behavior the condition of a coercive act - of a sanction.").
22. Id. at 34.
23. For Kelsen's reductive analysis of duty, right, and obligation, see chapter four of the Pure Theory of Law. Kelsen collapses a "right" held by one individual into a duty on another, see id. at 127, which in turn collapses into the existence of a legal norm prescribing a sanction when the duty-bound individual fails to conform, see id. at 117.
24. See generally Stanley L. Paulson, The Neo-Kantian Dimension of Kelsen's Pure Theory of Law, 12 OXFORD J. LEGAL STUD. 311, 318-22 (1992) (describing Kelsen's conscious departure from both natural law and empirico-positivist traditions).
25. See generally LAURA KALMAN, LEGAL REALISM AT YALE 17-20, 30-35 (1986) (describing influence of psychology and empirical social science on American legal realists);
26. JOHN HENRY SCHLEGEL, AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL SCIENCE 23-261 (1995) (same).
27. PURE THEORY OF LAW, supra note 3, at 4.
28. Id. at 5.
29. See generally Anthony J. Sebok, Misunderstanding Positivism, 93 MICH. L. REV. 2054, 2061-72 (1995) (tracing intellectual history of basic tenets of legal positivism).
30. This picture is complicated by Kelsen's assertion that valid law must also be minimally effective law. This qualification causes problems for Kelsen's approach, as discussed infra text accompanying notes 34-39. The reading of Kelsen proffered by this Note would remove any such qualification of Kelsen's definition of valid law, thereby enhancing the purity of his theory of legal validity. See infra text accompanying notes 89-90.
31. See PURE THEORY OF LAW, supra note 3, at 58 ("[A] legal order . . . may be described in sentences pronouncing that under specific conditions (that is, under conditions determined by the legal order) specific coercive acts ought to be performed."); id. at 51 (defining norms linked to sanction-stipulating norms as "dependent norms").
32. For Kelsen's discussion of the basic norm and the hierarchy of the legal order, see chapter five of the Pure Theory of Law.
33. Id. at 193.
34. See id. at 200-01 ("[T]he basic norm of the legal order . . . must be formulated as follows: Coercive acts ought to be performed under the conditions and in the manner which the historically first constitution, and the norms created according to it, prescribe. (In short: One ought to behave as the constitution prescribes).").
35. Id. at 205.
36. See id. at 217-18 ("The validity of a positive legal order cannot be denied because of the content of its norms. This is an essential element of legal positivism; and it is precisely in its theory of the basic norm that the Pure Theory of Law shows itself as a positivistic legal theory.").
37. Kelsen traces the chain of validity from an act of coercion up to the basic norm. See id. at 199-200.
38. In Kelsen's words: A legal norm is not valid because it has a certain content, that is, because its content is logically deducible from a presupposed basic norm, but because it is created in a certain way - ultimately in a way determined by a presupposed basic norm. For this reason alone does the legal norm belong to the legal order . . . . Id. at 198.
39. This generalization regarding the two traditions is one that Kelsen himself noted: The theory that only the courts create law, a theory grown upon the soil of Anglo-American common law, is just as one-sided as the theory, grown on the soil of European-Continental statutory law, that the courts do not create law at all, but only apply already created law. . . . The truth is in between. Id. at 255
40. Id. at 235 ("Each law-creating act must be a law-applying act - it must be the application of a legal norm that preceded the act in order to be considered as an act of the legal community."); id. at 353 ("In the application of law by a legal organ, the cognitive interpretation of the law to be applied is combined with an act of will by which the law-applying organ chooses between the possibilities shown by cognitive interpretation.").
41. This methodological Kantianism was present through most of Kelsen's career. In the revised and enlarged second edition of the Pure Theory of Law, published in 1960, he claims that: according to Kant's epistemology, the science of law as cognition of the law, like any cognition, has constitutive character - it "creates" its object insofar as it comprehends the object as a meaningful whole. Just as the chaos of sensual perceptions becomes a cosmos, that is, "nature" as a unified system, through the cognition of natural science, so the multitude of general and individual legal norms, created by the legal organs, becomes a unitary system, a legal "order," through the science of law. But this "creation" has a purely epistemological character. It is fundamentally different from the creation of objects by human labor or the creation of law by the legal authority.
42. PURE THEORY OF LAW, supra note 3, at 72.
43. However, in the General Theory of Norms, published posthumously, Kelsen does not rely on a Kantian methodology. Significantly, he also does not systematically provide the pure theory of law with a new justification, but instead discusses types of norms and the relation of norms to logic.
44. The impact of the General Theory of Norms on the project undertaken in this Note is discussed infra note 49.
45. Norms created by legal organs have "objective" validity in Kelsen's theory if a higher legal norm authorizes their creation. The ultimate basis of all norms is the basic norm. See PURE THEORY OF LAW, supra note 3, at 8.
46. See id. at 202. Kelsen expresses this point as follows: Insofar as only the presupposition of the basic norm makes it possible to interpret the subjective meaning of the constitution-creating act (and of the acts established according to the constitution) as their objective meaning, that is, as objectively valid legal norms, the basic norm as represented by the science of law may be characterized as the transcendental-logical condition of this interpretation . . . . Id. Kelsen emphasizes that the basic norm is presupposed by the juristic mind in order to make it clear that the basic norm need not actually exist: It does not represent an empirical claim about the popular approval of constitutional norms. Id. at 202-03.
47. Id. at 76.
48. Id. at 77.
49. Id. at 76.
50. Id. at 193.
51. See id. at 1. While Kelsen's approach separates law from morals successfully, Kelsen's claim to be pure in the second sense has been criticized. See infra note 39. This Note argues in Part III that a Weberian approach can correct the shortcoming in Kelsen's attempt to be free from sociological elements.
52. PURE THEORY OF LAW, supra note 3, at 11.
53. Id. (emphasis omitted).
54. Where there exists no clear rule governing how to determine when unenforced statutes are void, legal positivism encounters difficulty in defining the contours of legal validity. The problem of prosecution under long unused criminal statutes raises interesting theoretical questions concerning the identification of valid positive law without recourse to morality. For example, consider United States v. Elliot, 266 F. Supp. 318 (S.D.N.Y. 1967), in which the defendant was the first person to be prosecuted under a 1917 statute penalizing conspiracy to commit a crime against properly in a foreign country at peace with the United States. He was charged under the statute with conspiring to blow up a bridge in Zambia. The defendant's due process claim that the statute was void for desuetude was rejected because, inter alia, the conduct punishable under the statute was immoral. See id. at 326 ("Conspiring to destroy a bridge is not, and never has been, permitted by community mores. Defendant would have to know his crime was wrong . . . .").
55. W. FRIEDMANN, LEGAL THEORY 279 (5th ed. 1967).
56. See id. at 285 ("How can the minimum of effectiveness be proved except by an inquiry into political and social facts? And this implies the necessity of a further political choice: Does the obedience of the majority, of an enlightened minority or sheer physical force decide? Whatever the answer, purity here ceases."); see also JOSEPH RAZ, THE CONCEPT OF A LEGAL SYSTEM 93-95, 203-05 (1970) (arguing that while Kelsen relates effectiveness to both public obedience and enforcement by legal officials, he "gives no indication of what the relation between the two types of manifestation of efficacy must be if the norm is to be considered efficacious. Nor is it clear how the efficacy of a norm can be measured or otherwise determined.").
57. When referring to Kelsen's Kantianism (or neo-Kantianism), commentators generally mean one of two distinct theses traceable in some fashion to Kant, both of which are present in Kelsen's pure theory. One idea, embraced by Kelsen as well as Weber, is that factual propositions and ethical propositions cannot be derived from one another; the second is the methodology criticized in this section. Alida Wilson has argued that the fact that Kelsen "denies the ability of reason to infer a judgment in the 'ought' mode from a judgment in the 'is' mode" is not an adequate reason to classify his theory of law as Kantian. See Alida Wilson, Is Kelsen Really a Kantian?, in ESSAYS ON KELSEN 37, 41 (Richard Tur & William Twining eds., 1986). Wilson argues that whereas Kant's discussion of free will in contradistinction to causality underpins his analysis of the is/ought distinction, that distinction is not made in Kelsen's pure theory. Kelsen, unlike Kant, is a determinist and does not believe in the rational deduction of oughts explored in Kant's ethical philosophy. But this Note does not focus on Kelsen's faithfulness to Kant. Furthermore, the is/ought distinction is not the Kantian principle that serves as the basis of Kelsen's methodology, though Kelsen argues that the dichotomy is crucial for understanding why natural law theories are a failure.
58. See. e.g., HANS KELSEN, A "Dynamic" Theory of Natural Law, in WHAT IS JUSTICE? 174, 174-75 (1957) (arguing that natural law doctrines unjustifiably assume one correct normative view ascertainable by jurisprudes).
59. See supra text accompanying notes 27-33. The relationship to the epistemological aspect of Kant's teaching, and that aspect alone, distinguishes Kelsen from previous "neo-Kantian" jurisprudes such as Rudolph Stammler, whose concept of law (as a formal system coordinating individual and sovereign purposes toward a just content) is linked to Kant's moral and legal philosophy as well as to the method of transcendental criticism. For Stammler, true law is just law, realized when individual desires find unity in a community of free-willed persons. See THOMAS E. WILLEY, BACK TO KANT 124-30 (1978). Kelsen, on the other hand, insists on a separation of justice and ethics from legal science. Kelsen's neo-Kantianism emphasizes the is/ought distinction and the transcendental argument, rather than Kant's practical philosophy.
60. PURE THEORY OF LAW, supra note 3, at 1.
61. See id. at 72.
62. One of Kelsen's principal popularizers and defenders in Anglo-American legal academia has been William Ebenstein. See, e.g., William Ebenstein, The Pure Theory of Law: Demythologizing Legal Thought, 59 CAL. L. REV. 617 (1971). Ebenstein tries to defend the pure theory while simply outlining Kelsen's Kantianism instead of attacking it. Were it enough to show that Kelsen in his lifetime had several thought-provoking insights into legal ideology, Ebenstein's efforts would constitute an adequate defense of Kelsen. However, unless one provides a global methodological grounding to support the purity of Kelsen's theory, the pure theory of law as a whole appears arbitrarily constructed and, frankly, not worth the effort. For an example of a discussion of Kelsen's pure theory that does not challenge his epistemological grounding but that largely glosses over the details of Kelsen's neo-Kantian methodology,
63. see M.P. Golding, Kelsen and the Concept of "Legal System," in MORE ESSAYS IN LEGAL PHILOSOPHY: GENERAL ASSESSMENTS OF LEGAL PHILOSOPHIES 69, 73 (Robert B. Summers ed., 1971).
64. There has been much criticism. For criticism since publication of the revised second edition of the Pure Theory of Law,
65. see, e.g., Ronald Moore, Kelsen's Puzzling "Descriptive Ought." 20 UCLA L. REV. 1269, 1279 (1973) (arguing that unity imposed by Kelsen's theory cannot be based on "an outmoded psychologistic epistemology. . . . [O]ne wonders whether seeing legal phenomena as a unity is warranted by the thing itself, or whether it is something arising from the needs (compulsions, habits, hopes) of the legal scientist . . . ."); Paulson, supra note 11, at 326-32 (criticizing Kelsen's application of Kantian transcendental arguments to legal thinking); Wilson, supra note 40, at 54-64 (arguing Kelsen misapplies Kant's theory of experience and fails to show that "imputation" is akin to Kantian category).
66. See Paulson, supra note 11, at 324-32.
67. See id. at 328-32.
68. Moreover, Paulson argues, the stronger, "progressive" version of the transcendental argument, which would derive from the pure data of consciousness the necessity of the category of imputation, is more obviously not a possible grounding for the pure theory. Id. at 328-29. Kelsen admits that instead of viewing law as a set of valid norms, one could analyze it through a purely causal lens. See PURE THEORY OF LAW, supra note 3, at 75.
69. Kelsen himself may have recognized this flaw. A striking feature of his General Theory of Norms is that there is no trace of the neo-Kantian justification for the pure theory, and no explanation for this silence.
70. See GENERAL THEORY OF NORMS, supra note 3. It is possible that Kelsen came to reject the neo-Kantian grounding for his theory of law and, in his later writings, tried to offer an accurate description of the function of legal norms rather than provide a comprehensive analysis of legal thinking. Stanley Paulson has stated that Kelsen's pure theory is rendered groundless and empty by Kelsen's renunciation of a neo-Kantian method with no other articulable methodological grounding to replace it.
71. Stanley Paulson, Kelsen's Legal Theory: The Final Round, 12 OXFORD J. LEGAL STUD. 265, 273 (1992).
72. In light of this silence in the General Theory of Norms,
73. the account of law put forward in the Pure Theory of Law is more obviously in need of a defense.
74. PURE THEORY OF LAW, supra note 3, at 50.
75. Natural law theorists Deryck Beyleveld and Roger Brownsword criticize many legal positivists for assuming what they claim to demonstrate, namely, that clear distinctions can be drawn between moral and legal norms. Beyleveld and Brownsword contest the very definition of law that forms the basis of Kelsen's pure theory. They object, reasonably I think, to Kelsen's strong claim that the science of law cannot permit a nonpositivistic concept of law, while in reality his positivistic concept of law determines the content of his science of law. See DERYCK BEYLEVELD & ROGER BROWNSWORD, LAW AS A MORAL JUDGMENT 47-49 (1986).
76. See PURE THEORY OF LAW, supra note 3, at 44-50.
77. This "argument" is not clearly articulated in the Pure Theory of Law, but it may be inferred from the fact that Kelsen first describes the uniqueness of the law's use of legitimate coercive force and then suddenly concludes that both his sanction-stipulating definition of the norm and the basic norm must be presupposed by legal science. Id. at 50.
78. Id.
79. See generally Thomas A. Cowan, Law Without Force, 59 CAL. L. REV. 683, 688-94 (1971) (arguing that Kelsen, like other legal positivists, cannot adequately account for ways that law shapes behavior without creating a perceived threat of force).
80. See. e.g., ENVIRONMENTAL PROTECTION AGENCY, Pollution Prevention Policy Statement: New Directions for Environmental Protection, 23 Envtl. L. Rep. (Envtl. L. Inst.) 35,555 (June 15, 1993) ("EPA's collaborative efforts - like the Green programs, 33/50, and Design for Environment - offer encouragement, assistance, and public recognition to those companies and groups willing to commit to pollution reduction efforts.").
81. See generally Lisa Bernstein, Understanding the Limits of Court-Connected ADR: A Critique of Federal Court-Annexed Arbitration Programs, 141 U. PA. L. REV. 2169, 2177-86 (1993) (describing compulsory, non-binding features of court-annexed arbitration). Although court-annexed arbitration is a compulsory prerequisite to a federal trial in certain classes of civil cases, it differs from private arbitration in that it is non-binding.
82. See RAZ, supra note 39, at 109 (pointing out plausibility of "valid" extraconstitutional law, which Kelsen's theory does not explain). See generally JOHN LOCKE, TWO TREATISES OF GOVERNMENT 374-80 (Peter Laslett ed., student ed. 1988) (3d ed. 1698)
83. (discussing, in Second Treatise, prerogative of the executive to transgress positive law and to act in his own discretion for public good, under constraints of law of nature).
84. Kelsen's theory is open to many of the general criticisms that other legal positivists receive for characterizing law as a set of rules - an approach that critics claim ignores (although it need not deny) the role of principles governing adjudication as well as the evolution of the common law. See generally Ronald M. Dworkin, Is Law A System of Rules?, in THE PHILOSOPHY OF LAW 38 (Ronald M. Dworkin ed., 1977) (attacking legal positivism for failing to appreciate role of principles governing judicial reasoning);
85. A.W.B. Simpson, The Common Law and Legal Theory, in OXFORD ESSAYS IN JURISPRUDENCE 77 (defending view of law as customary activity and attacking view of law as system of rules).
86. Max Weber, "Objectivity" in Social Science and Social Policy, in THE METHODOLOGY OF THE SOCIAL SCIENCES 49 (Edward A. Shils & Heary A. Finch trans. and eds., 1949). The essay was first published in 1904. Weber's own sociological studies display a variety of styles, from the primarily historical to the highly analytical. The term "Weberian methodology" as employed here is not meant to point to the approach Weber actually used in any one of his works, but instead refers to basic principles Weber put forward in the cited essay, which is devoted to articulating the modern social scientist's undertaking. Issues such as whether Weber in his later works remained faithful to the rules he expounded in the Objectivity essay are beyond the scope of this Note.
87. See id. at 52-57.
88. See id. at 75-77.
89. Id. at 89-104.
90. See id. at 57.
91. Id. at 76.
92. Id. at 84.
93. Weber published the Objectivity essay in the context of a vigorous debate among German university professors at the end of the nineteenth century concerning the difference between natural science and the cultural or human sciences. Weber's own views were complex in this regard. He believed that the presuppositions of natural science could not simply be imported into social science, because, inter alia, "in the social sciences we are concerned with psychological and intellectual (geistig) phenomena the empathetic understanding of which is naturally a problem of a specifically different type from those which the schemes of the exact natural sciences in general can or seek to solve." Id. at 74. Weber thus rejects Comtean social analysis, which would induce laws governing human action in the manner of the natural sciences. Weber does not, however, move to the other extreme and insist upon a strict dichotomy between natural sciences and social studies. For Weber, the effort to form and revise rules of general applicability is not unique to the natural sciences. Such rules are "quite indispensable" to social science, but, importantly, in the human sciences they are only "heuristic means" to the end of understanding human action, which can never be reduced to general laws. Id. at 76.
94. Id. at 72.
95. Id. at 80.
96. In Economy and Society, Weber defines sociology more narrowly as the "science concerning itself with the interpretive understanding of social action and thereby with a causal explanation of its course and consequences."
97. 1 MAX WEBER, ECONOMY AND SOCIETY 4 (Guenther Roth & Claus Wittich eds., Bedminster Press 1968) (4th ed. 1956). Social action refers to the subjective orientation of individual action in taking other individuals into account. 1 id. For the purposes of this Note, however, the broader scope of the Objectivity essay's understanding of social science is incorporated into the term "Weberian methodology." Thus, when referring to "Weberian methodology," I do not mean to require that an exposition of a certain process be adequate on the level of individual subjective meaning, although much of social scientific knowledge aims to account for individual meaningful behavior.
98. Weber, supra note 59, at 90.
99. Id.
100. Id. at 92.
101. The attribute of "one-sidedness" for ideal type constructs does not denote that every ideal type must be a simple, one-sided concept. An ideal type may be complex and multifaceted, such as an ideal type of parliamentary decisionmaking. Rather, the attribute of one-sidedness indicates that the aspects that comprise a given ideal type, however many are involved, are generally selected and emphasized at the expense of other contending aspects. For example, an ideal type of international trade may try to model complex and diverse individual price-setting mechanisms, while overlooking structural and cultural barriers to effective bargaining.
102. Weber, supra note 59, at 90.
103. Id. at 91.
104. Id.
105. Id. at 93-94.
106. Id. at 96. In Economy and Society, where Weber emphasizes the importance for sociology of the explanatory understanding of human action, he specifically states that identifying rational mental phenomena is useful because these account for part of the subjective framework of actors. See 1 WEBER, supra note 69, at 5-7. In other words, Weberian sociology seeks to account for individual, subjective human action and realizes that both rational modeling (creating ideal types for rational (means-ends oriented) behavior) and empathetic understanding are necessary to account for socially oriented human action.
107. Weber, supra note 59, at 97.
108. Id. at 98. This point is raised in the conclusion of this Note, which suggests that rival concepts of law be evaluated on the basis of how well they serve the goals of Weberian social science.
109. There is one important exception to the idea of simply detaching and preserving Kelsen's substantive models: Kelsen's model of legal validity, when presented as a Weberian ideal type, drops the requirement that a law have a minimum of effectiveness. See supra text accompanying notes 35-39; infra text accompanying notes 86-88.
110. Kelsen, like many modern legal theorists, points to the insights into actual legal practice that his theory offers. See, e.g., Hans Kelsen, The Pure Theory of Law, 200 LAW Q. REV. 474, 492-98 (1934) (summarizing various anti-ideological consequences of the pure theory). Kelsen's frequent observations about the usefulness of his pure theory thus suggest that adapting the pure theory to a Weberian understanding of social science may be felicitous.
111. PURE THEORY OF LAW, supra note 3, at 85-86.
112. Id. at 87; see O.W. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 461 (1897) ("The prophecies of what courts will do in fact . . . are what I mean by the law.").
113. Kelsen writes that social sciences "have human behavior as their object so far as it is determined by causal laws, which means, so far as it occurs in the realm of nature or natural reality." PURE THEORY OF LAW, supra note 3, at 85. But this does not quite capture Weberian methodology. The pure theory sets itself apart from some kinds of sociology that Weber would also dismiss as too limited, namely, the kinds that equate sociology with the discovery of empirical rules and causal laws.
114. Superficially, Weber's methodology might seem to require the separation of morality from any ideal type of law. After all, Kelsen and Weber both hold the view that an unbridgeable gulf separates factual from normative propositions. See id. at 68-69, 221; Weber, supra note 59, at 52. A moral criterion might thus be mistaken as an espousal of ethical beliefs, and thus as a transgression of the rules of Weberian social science. Yet that would be an error. A social scientist who accepts Weber's methodology and whose scholarly interest lies, for example, in understanding obedience to legal rules, might structure an ideal type of law that includes, as one of the necessary criteria for legal validity, a minimal moral content. With such a definition of legal validity, it may be possible to understand why some rules are never obeyed or to identify the reasons why a particular set of people obey law. That social scientist includes a moral criterion in her ideal type strictly as a device used to understand human activity and makes no claim as to the correctness of the ethical criterion introduced.
115. This is in sharp opposition to Kelsen's perspective on the inclusion of moral elements in legal theory. Kelsen argues that a science of law that strives to remain strictly objective must be free of moral elements. He claims this is so because a definition of law that includes a moral criterion implies the claim that those moral tenets to which it refers are correct. See Pure Theory of Law, supra note 3, at 63, 65. Kelsen then concludes that if one rejects the possibility of proving the validity of moral prescriptions, one must reject any such concept of law. Thus Kelsen shuts off, on the basis of moral relativism, a possible method of analyzing law. Because Weber's model of social science does not pretend to construct a true representation of the nature of law, it maintains more flexibility concerning definitions.
116. See supra text accompanying notes 49-51.
117. PURE THEORY OF LAW, supra note 3, at 210, 211 ("A constitution is 'effective' if the norms created in conformity with it are by and large applied and obeyed."); see also supra note 39 (discussing criterion of minimal effectiveness).
118. See FRIEDMANN, supra note 38, at 285 (arguing that effectiveness criterion destroys purity of Kelsen's theory).
119. Of course, Kelsen does not state these as reasons or motivations that lurk behind his theory as methodological justifications.
120. PURE THEORY OF LAW, supra note 3, at 35-37.
121. Weber described the modern state in a similar manner. See Max Weber, Politics as a Vocation, in FROM MAX WEBER: ESSAYS IN SOCIOLOGY 77, 78 (H.H. Gerth & C. Wright Mills eds. and trans., 1948) ("[A] state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.").
122. Pure Theory of Law, supra note 3, at 4.
123. See text accompanying notes 49-52.
124. Kelsen, supra note 82, at 494.
125. On occasion, law itself acknowledges the political or policy implications of the legal system's maintenance of private law rules. In American constitutional law, the task of interpreting "state action" under the Fourteenth Amendment has forced the courts to grapple with the coercive (discriminatory) aspects of state judicial enforcement of private agreements. See, e.g., Shelley v. Kraemer, 334 U.S. 1, 20 (1948) (holding that Fourteenth Amendment is not "ineffective simply because the particular pattern of discrimination, which the State has enforced, was defined initially by the terms of a private agreement. State action, as that phrase is understood for the purposes of the Fourteenth Amendment, refers to exertions of state power in all forms.").
126. See PURE THEORY OF LAW, supra note 3, at 281-84.
127. For example, a law is valid if its content overlaps with moral commandments, or a law is valid if people recognize it as valid law.
128. Ebenstein discusses this and other interesting consequences of Kelsen's definition of the legal norm. See Ebenstein, supra note 44, at 628-35.
129. See PURE THEORY OF LAW, supra note 3, at 349.
130. See id. at 255.
131. Id. at 354.
132. Id. at 353.
133. See id. at 245-50.
134. Id. at 246.
135. Id. at 249.
136. See id. at 351.
137. See, e.g., Dworkin, supra note 58, at 43-65 (arguing that legal positivism, by identifying law with rules, ignores the crucial role of principles that direct judicial decisionmaking). Dworkin claims that positivism does not offer a helpful definition of law because it does not provide an account of judicial decisionmaking in hard cases. Id. at 65.
138. The famous Hart-Fuller debate concerning the inclusion of moral elements in the definition of law illustrates the presence of instrumental concerns in the construction of general concepts of law. H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593 (1958);
139. Lon L. Fuller, Positivism and Fidelity to Law - A Reply to Professor Hart, 71 HARV. L. REV. 630 (1958). In the debate, both Hart and Fuller defend their versions of law through consequentialist arguments rather than through demonstrations that the opponent's definition is incorrect. The rival definition, each claimed, would engender deleterious effects on judicial activity and public behavior. Hart argues that Fuller's theory runs the risk of chilling moral criticism of existing law, Hart, supra, at 598, while Fuller fears that Hart's theory leads to formalism that chills moral self-examination among legal officials who apply law, Fuller, supra, at 637. And although Fuller criticizes legal positivism for ignoring the purposeful human activity that is needed for a legal order to work, he does not claim that Hart would deny this fact. Indeed Hart would not deny that mores do help explain fidelity to law. Where Hart and Fuller really part ways is over the issue of whether it is better to call a set of enacted provisions bad laws or instead to say they are declared, enforced provisions that, however, do not meet the minimum standards of law. The Hart-Fuller debate is really about what outcomes we can expect once we construct concepts that model a commonly known set of data in two different ways. However, whereas Weberian methodology focuses on positive and negative consequences for the social scientist, the Hart-Fuller debate loses this focus. Hart and Fuller strain credulity to the extent each claims that his opponent's definition will lead to reactionary or revolutionary changes in mores, as though their writing will influence either the lay person or the judge. The important point to be gleaned from their debate is that legal theorists have indeed debated the usefulness of definitions, though they may not have understood that their implicit goals in constructing a concept of law can be captured by Weberian methodology.
140. One could argue that Hart's concept of law as the union of primary and secondary rules is less incisive than Kelsen's because it is more nuanced. Robert Moles has argued that Hart's definition of law, although a more thorough and complex sociological definition of legal systems, cannot have the same expository power as Austin's simpler definition of positive law as the command of the sovereign: "If we lump everything together, as Hart does, then intellectually, we have a reduced capacity to understand the world." ROBERT N. MOLES, DEFINITION AND RULE IN LEGAL THEORY: A REASSESSMENT OF H.L.A. HART AND THE POSITIVIST TRADITION 107 (1987). Moles argues that the clear demarcation of elements in definitions is a means to a deeper understanding of whatever is under study, and thus, definition in legal theory must not seek to be all-embracing. Id. at 106-07. Moles does not discuss Weber, but his point is Weberian to the extent that it sees definitions as tools in the service of understanding and not necessarily as accurate descriptions.