Pure Formalism? Kelsenian Interpretative Theory between Textualism and Realism

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