Non-Naturalism, Normativity and the Meaning of 'Ought'

Abstract:     
In this paper I wish to focus on Kelsen’s non-naturalism, the tenet that is inexorably intertwined with the development and elaboration of the pure theory of law, his most prominent and everlasting intellectual achievement. I shall argue that Kelsen’s endeavour for non- naturalism is incompatible with a strict separation between the legal and the moral ought. Famously both tenets, that of non-naturalism and that of the strict separation of law and morality, were put forward as complementary components of the purity thesis. To that extent, I argue that the purity thesis is characterised by an insurmountable tension, which can be resolved only if one of its components is dropped. To make things clear from the outset, my claim rests on the assumption that non-naturalism is synonymous with, or at least constitutes a condition of, practical normativity in general. In other words, it is not possible to redeem a full-blooded normativity, unless one establishes that normative items (be they norms, reasons, or you call it) are non- naturalistic through and through. However, so I argue, insofar as normativity pertains to the moral as well as the legal domain, it is incoherent to treat legal obligation in a non-naturalistic manner, while leaving out moral obligation.

Number of Pages in PDF File: 17

Keywords: Kelsen, Legal Theory, Normativity, Metaethics

working papers series