Pure Formalism? Kelsenian Interpretative Theory between Textualism and Realism
Forthcoming in Telman (ed) Kelsen in America
16 Pages Posted: 20 May 2015
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
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