Paulson's Nomological Normativity

Abstract

In some of his recent work Stanley Paulson puts forward a number of important and ambitious exegetical claims about Hans Kelsen’s Pure Theory of Law. Some of these claims are not novel in Paulson’s rich Kelsenian corpus. But, taken together, these claims now amount to the main outlines of a fully-fledged interpretation of the theoretical foundations of the Pure Theory of Law. Paulson holds that (1) contrary to what Joseph Raz, Carlos S. Nino and many others have claimed, there is, in the Pure Theory of Law, no “justified normativity” thesis. Kelsenian normativity is, rather, “nomological” normativity. (2) ‘Validity’ is not, in the Pure Theory of Law, a matter of the reasons norm-subjects may have for acting this way or that, or of how they should behave. (3) What ‘ought’ expresses, in (primary) legal norms (properly reconstructed), is empowerment, not – as one might naively believe – obligation. In this paper I scrutinize these three claims. My aim is not to assess their correctness. I do not discuss whether they are sound, as a matter of exegesis of the Pure Theory of Law. I examine, rather, their consequences. Given that they are true, what follows for Kelsen – and for Paulson – from this fact?

Keywords: Stanley L. Paulson, Hans Kelsen, Normativity (law), Legal validity, Empowering norms, Pure Theory of Law