Pure Formalism? Kelsenian Interpretative Theory between Textualism and Realism

Forthcoming in Telman (ed) Kelsen in America

16 Pages Posted: 20 May 2015

See all articles by Christoph Bezemek

Christoph Bezemek

University of Graz, Faculty of Law, Institute of Public Law and Political Science

Date Written: January 15, 2015

Abstract

Positivist theory, to state the obvious, is not held in high regard at least among some members of US legal academia; a position, it seems, partly owed to supposed grave methodological deficiencies caused by a positivist approach: A formalist, or even ‘hyperformalist’ theory, positivism, it is sometimes suggested, is destined to entail a ‘hypertextualist’, and thus in any case inadequate, approach to interpretation. Still: Focusing on the Kelsenian variety of legal positivism one may wonder whether this presumption actually proves to be correct. Arguably Kelsen’s theory is to be understood as a formal approach to law. Still: Whether the appreciation of positivist thought as ‘formalist’ or even ‘hyperformalist’ actually does apply, obviously depends on the definition of formalism. But even if Kel-sen’s theory of legal positivism is to be considered a formal approach to law: Are the methodological consequences thus implied valid? Does the Pure Theory of Law call for a purely formalist theory of interpretation? This essay will argue it does not.

Keywords: Positivism, Textualism, Realism, Kelsen

Suggested Citation

Bezemek, Christoph, Pure Formalism? Kelsenian Interpretative Theory between Textualism and Realism (January 15, 2015). Forthcoming in Telman (ed) Kelsen in America, Available at SSRN: https://ssrn.com/abstract=2607218

Christoph Bezemek (Contact Author)

University of Graz, Faculty of Law, Institute of Public Law and Political Science ( email )

Universitaetsstrasse 15 / FE
A-8010 Graz, 8010
Austria

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
178
Abstract Views
765
Rank
337,749
PlumX Metrics