Hans Kelsen’s Pure Theory of Law and the Marburg School

Andrzej Lisak

The purpose of this article is to outline Hans Kelsen’s pure theory of law as one of those theoretical achievements that follow the method of Marburg School. Kelsen defends the autonomy of law and its purity as warranted by the transcendental possibility of its grounding. Law according to Kelsen has its origin in the law itself or, to be more precise, law rises from transcendentally comprehended obligation (Sollen). Kelsen’s theory of law is essentially methodological: its sole goal is to answer the question “what is the law and what are its features”, not to answer the question how exactly the law should look like and how it is supposed to emerge. The specii city of law-constructed reality is best seen while scrutinizing the conception of legal person. Legal person is a theoretical construction and bears no resemblance to a real person whatsoever. Therefore, the concept of will in law is purely conceptual construction that is utterly different from the real psychological act of volition. The law creates a certain non-causal and non-teleological relation, that Kelsen qualii es as Zurechnung – to hold somebody responsible for something. The law is a dynamic system of norms in which one norm is obligatory because emerges from some higher norm. The basic norm is an obligation in the normative sense; basic norm and obligation are relativ apriorische Kategorie. The article endeavors to present other fundamental aspects of Kelsen’s theory in their relation to the learning of Marburg School.


Keywords: Kelsen · Marburg School · Neo-kantianism · transcendental philosophy · pure theory of law · philosophy of law

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