D. A. Jeremy Telman (ed.), Hans Kelsen in America - Selective Affinities and the Mysteries of Academic Influence, pp. 45-84 (Springer Verlag 2016)
William & Mary Law School Research Paper No. 09-344
44 Pages Posted: 13 May 2016 Last revised: 13 Nov 2023
Date Written: May 12, 2016
Andrei Marmor’s reading of Kelsen in his book Philosophy of Law (2011) exemplifies American and Anglophone interpretations, which see Kelsen as failing to consistently offer a pure theory of law. I argue that Marmor misreads Kelsen in three ways, each of which makes it appear as if Kelsen reduced the law to social facts. First, Marmor wrongly marginalizes the doctrine of the unity of law in Kelsen’s legal theory, thereby making Kelsen look as if he thought multiple independent legal systems, each dependent upon a human community, exist. Second, Marmor misreads Kelsen’s doctrine of efficacy as the view that the existence of a legal system fundamentally depends upon the norms of the system being followed by a community’s members. Third, Marmor misunderstands the Neo-Kantian nature of Kelsen’s legal theory, attributing to Kelsen the very psychologism that he argued against. Once we set these three mistakes aside, we can understand Kelsen as having offered a genuinely pure theory of law. But the question remains whether we have a reason to accept the theory. I end by briefly discussing some evidence from the conflict of laws that suggests that jurists treat the law as not reducible to social facts.
Keywords: Hans Kelsen, Legal Positivism, Andrei Marmor, Monism
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