Law and science of law in the work of Kielsen
Hans Kielsen is perhaps the best example of an author who became famous for the wrong reasons. In Brazil at least, there is a gap between theory Kielcinian And what do we say about her? Of course, like any author, Kielsen is subject to criticism. It turns out that these criticisms often fall on a theoretical bogeyman, and it is no exaggeration to say that the ideas of this author still have to be known to an important part of Brazilian legal doctrines. .
Without underestimating 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 for reference in the second edition of Pure Law Theory, launched in 1960, a modified and greatly enlarged version of the first, from 1934. Among the extensions, and the inclusion of an eighth chapter of the judicial judgment and an article on Legal problem , in which Kielsen made a series of critiques of the natural law doctrine. In fact, the topic is more than closely related to another specific text.
At the beginning of the 20th 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. Thus, in this sense, Kelsen constructs a theory of pure law. In the words of the author: “When pure theory undertakes to define knowledge in the face of these disciplines, it is not by ignoring or, even less by denying, this link, but because it tries to avoid a systematic syncretism which obscures the essence of legal sciences and weakens its limits. imposed by the nature of its object. .
Kelsen then develops a legal theory devoid of any political ideology and independent of other elements of the social and natural sciences; Independent theory aware of the specificity of the subject studied and faithful to it. As the author himself says, his aim was to bring the science of law to a level the condition true science, for only then will it be appropriate to explain the necessary elements”[…] To know the law, to make its results as close as possible to the ideal of all sciences: objectivity and exactness” .
Specifically to achieve this objective model, pure legal theory aims to be a formal theory that can be applied in any country, regardless of the legal traditions with which it is connected and the social and political context; In short, it is a theory on[…] Positive law in general, not the private legal system” . This explains the legal phenomenon mentioned in the summary.
It follows that Kielsen’s goal was not to separate law from ethics and politics, but legal science from ethics and politics, creating a scientific methodology capable of objectively describing what what the law is, regardless of what it should be. The emphasis has therefore been placed on the form of law which is universal and not on its changing content. According to the author, value judgments cannot be the subject of logical analysis or objective knowledge, and therefore they cannot be the subject of a real science like the one he proposes. .
It is important to note, in this sense, that pure It’s a theory not a law, Kelsen constructed a pure theory for the study of an impure being. Law, for Kielsen, is the result of political disagreements and the assertion of values and is inseparable from the realms of politics and morality. The science of law must be pure and its role is the abstract description of the values of legal norms that have been produced in a particular legal system. For the avoidance of doubt:
The depoliticization required by the pure theory of law is linked to the science of law and not to its subject, 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 must be separated from politics if, in the final analysis, it is to be considered a science. .
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 of real law, which seeks to explain how it is created and how it presents itself in legal systems. Whether a law is just or not is excluded from analysis, even because Kelsen is considered a moral relativist, is a personal matter. It is the imprecision and subjectivity inherent in ethics which cannot affect a science of law which, like any real science, does not evaluate its subject, neither to approve it nor to disapprove it, but only explain rationally. .
Indeed, although the act which creates the law is affected by all kinds of moral, political, economic, social, etc. considerations, the product of this act, that is to say the legal basis, is independent with respect to these areas, and therefore the interpretation of the law is possible without regard to the facts and values that led it. Note that this does not mean, for Kelsen, that the content of legal rules is unimportant. His aim was not to eliminate all evaluative attitudes to law, but only to emphasize that this is not a task to be performed by the science of law, but by the politics of law. .
Clearly, then, the charge that Kelsen separates law from morality is not worth flourishing. It is simply a question of identifying the moments when other social systems influence the creation of law, in order to determine what should be described by the legal theorist. For Kelsen, the legal dynamic that the theorist must describe is precisely the moment when politics and morality influence the law, so what the author has sought to avoid by 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 subject of study. Purity refers to the theory, not its object (law). Kelsen goes so far as to state explicitly that law cannot be separated from politics. . 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 question becomes clearer in Chapter 8 of Pure Law Theory. , when Kelsen uses the normative framework metaphor and distinguishes between interpretation as an act of knowledge, performed by legal theorists, and interpretation as will, performed by law enforcement. However, there is another topic that needs to be covered in a later specific article.