Hans Kelsen's Earliest Legal Theory: Critical Constructivism
Legal positivism in the jurisprudential tradition of the European Continent is characterised by what might be called the facticity thesis: the law is ultimately explicable in terms of, or 'reducible to,' a concatenation of fact whether it be power, the will of the sovereign, or the community's acceptance of the legal system.1 Shifting the idiom to a semantic counterpart of the facticity thesis, the legal theorist of a reductive persuasion 'provide[s] eliminative definitions of normative terms,'2 introducing instead non-normative, descriptive terms, in what Joseph Raz has called the reductive semantic thesis.3 Kelsen's conviction that the facticity thesis is wrongheaded drives his theory, particularly in the very early work. In place of the legal positivist's facticity thesis, Kelsen introduces a normativity thesis, which calls for an explication of law and of legal obligation in particular altogether independently of fact. Shifting the idiom to a semantic counterpart of the normativity thesis, the legal theorist of a non-reductive persuasion argues that juridico-normative terms cannot be eliminated in favour of non-normative, descriptive terms, or explicated by means of them. Kelsen's endorsement of the normativity thesis represents, inter alia, his rejection of every fact-based legal theory. At its core, Kelsen's Pure Theory of Law does not consort with facts at all.