8 The Pure Theory of Law, ‘Labandism, and Neo-Kantianism. A Letter to Renate Treves* HANS KELSEN Professor Dr. Hans Kelsen Strobl, near Ischi Villa Lechner {austria} 3 August 1933 Dear Dr. Treves, T thank you very much indeed for your kind letter of 25 July. 1 am delighted that the translation of my manuscript on the methods ab asks concepts of the Pure Theory of Law! is complete, and in patticular that you ate the one who did the translating, For! know how thoroughly ‘you have grasped the spirit of my theo! ‘This is confirmed by the remarks you intend to make in your own manuscript on the Pure Theory.* The comments you convey tO me are lated by Mi Italian translation relat Bobi themes at greater lent. Renato Trevee (1907-92) was at170 : Hans Kelsen fully comrect in every respect. Permit me, however, to give voice to a few additional thoughts, ™ (1) The claim of some that the Pure Theory of Law amounts to noth. ing other than ‘Labandism’ is especially absurd because of Laband’s utter failure in his effort to separate the depiction of the positive law-from politics.® In reality, Laband’s theory of public Taw is an ideology of the monaichical principle, which Labang, entirely without warrant, consid- ered contradictory to the positive law. As to the requixement, acknow- [Sdged( by Laband, that the positivist theory of public law be separated from politics, the Pure Theory of Law is of couse a continuation of the tradition that beRins fh Germany with Geibes, whe simply extends to ‘Bublic law a funcameni iat was self-evident in the fied of pilvats law for along, time The main distinction, however, between the Pure Theory of Law and Laband’s positions that Laband did not estab-. ised on principle at all, Strictly speaking, he confined _ il interpretation of the Constitution and, in the ‘absence of a theoretical foundation, asserted the difference that exists in principle between public and ie law. Similarly (Laband’s position | holds fast to the dualism of intemational law and state Jaw, a dualism “aetontad even today by Trepel® and, with him, by a great number of sociology, and along with Norberto Bobbio (se falian audience. On Tievess life and we 1 ology of Lav inthe Work of Renato Trove: 2 alsa Dirita, cultura e liber A. the course ofa scathing critique cory of public law, he waites: ‘The Pure Theory of Law isthe het, bora too late, iuvism, the logically inevitable fulfliment of the programm ‘alisn both to sociology aid to questions of value’ Hermann | NUE.16 (1526), 289-316, a 300 (note omitted), repr in ‘edn, ed. Christoph Miller, 3 vols. (Tubingen: JCB. 23-81), leading German public law theorist. As ‘conceptual method of private law (the method ‘work of Puchta and the easly heving) and then transferred What became known as the modern German His weatise 1968) was for many decades the standard w. stich M. Gasser, ‘Heinrich THepel. Leben und W I A Letter to Renato Treves in Germany's current theorists of public and intemational Iaw—but also, ‘by Anzilotti® whose theoretical work certainly ranks far Should also like to ment passing, that even my roblems in the Theory of Public Law,? was most political tendencies—albeit cleverly Jaw, and, therefore, that my Pure Theory of Law actually originated in the struggle against ‘Labandism’, Furthermore, itis curious that the charge of ‘Labandism’ is ‘elled against me by the very people who never tire of warning that my theory is dangerous to the state. Laband himself, the decidedly conserv- ative crown just of the Prussian dynasty, would no doubt spin in his grave if he were to lear that he is being held accountable for the Pure ‘Theory of Law. {Q) It is altogether correct that the philosop! Pure Theory of Law is the Kantian philosophy philosophy in the interpretation that it has undergone ‘A point of special significance is that just as Cohen un Critique of Pure Reason as a theory of experience, so I apply the transcendental method to a theory of po dnderstands the ‘positive law as ‘empirical’ law, law in experience, or ‘legal experience’, as Sander? has termed Ht, then the Pure Theory of Lawis indeed empiricistic—but empiricism in the same sense as Kant’s172 Hans Kelsen transcendental philosophy, And just as Kant’s transcendental philoso- sgetically opposes all metaphysics, so the Pure Theory of Law the field of social reality generally and the field of pr physics. I have i Foundations of Natural Law Theory and Legal Positivism, Lecture 31 of the Kant Society.2° Precisely because the Pure Theory of Law was the first to try to develop Kant's philosophy into a theory of positive law (and did not get bogged down in a theory of natural Jaw, as Stammler*# does), it marks in a certain sense a step beyond Kant, whose own legal theory rejected the transcendental method."* Nevertheless, the Pure Theory of Taw has been a more faithful custodian of Kant's intellectual legacy than any of the other legal philosophies that draw on Kant. The Pure Theory of Law first made the Kantian philosophy really fruitful for the law by devel- oping it further rather than clinging to the letter of Kant's own Jegal phi- losophy. If one recognizes in Kant’s work a truly German philosophy, then the Pure Theory of Law is the most German of all the legal philoso- phies developed in Germany since Kant. I address this to those who do not understand the Pure Theory of Law and therefore believe that they can successfully combat it in the politically polluted atmosphere of our time by describing it as ‘un-German’. I should like to invite attention here, en passant, to the radically universalistic character of the Pure Theory of Law, which—the first theory to do so—takes as its point of departure the whole of the law, the legal system, in order to comprehend from this standpoint all other phenomena as parts of the whole. Thus, the doctrine of the reconstructed legal norm (Rechtssat2)"* is at the core ofthe Pure Theory of Law. Even Hegel's legal philosophy ed toward the natural law theory of its time—failed, notwithstanding its notion of Natoxp af the Marburg sociology—eg. Max Adler, Julius ‘Kantorawlez, Siegfried Marck, Adolf ‘Weyr-—found agood bi (manszendentale Methods) ie not an fsofthe Basie Norm’ (r-8 above}, $l A.Letter to Renato Treves 173, objective thought, to approach the level of objectivity attained by the Pure Theory of Law. For the Pure Theory liberated from absolutism not only the opposition between public and private law, brit also the epposi- tion between objective and subjective law, thereby throwing over a host of completely indefensi ms in legal theory. juishes the Pure Theory of Law from the field, was not ina posi- tion to overcome the nat arily because he was sim- ply unfamiliar with the positive law and with what he correctly invoked fa ‘the fact of legal science’. The deciding factor here was that Cohen .w from the Kantian transcendental philosophy the field of social reality, that is, with reference to existing social systems: the existing state, the positive law, the prevailing ‘morality. He was unable to forgo the assumption of a contentually con- Stituted, materially determined a priori. With reference to those positive norms determining social life, he could not rest content with purely for- al categories of a priori validity. For that would inevitably have led ethical relativism, something that Cohen—ezacily like Kent on 1 point—was not prepared to accept, if only because of his religious con Yietions. Thus, the Cohennian legal philosophy, like Stammler’s, is a ‘theory of natural law, not a theory of positive law, which alone i {ideal system of the Kantian philosophy, theory of nature qua experience. ficiently consistent to extend the splendi is transcendental phi- losophy also to cognition of the state, the Jaw, and morality—that is, 0 social theory—and that here metaphysics survives, which he had com- pletely surmounted in the field of cognition of nature. The appeal to Kant made by the Pure Theory of Law, then, can of course be contradicted by those who look upon his ethics as the true Kantian philosophy. Its eas- ily shown that the ethics is utterly worthless, a claim that can be made even by those who look upon the Kantian transcendental philosophy as the greatest philosophical achievement of all (d) Although itis altogether correct that the theory of the basic norm finds a certain support in Mach's principle of economy of thought** and (Ea Salle, IL: Open Const, 194 simmplictyin sclence and the philosophy of ‘al knowledge can only mentally represent iipate comps sdumg, Gt edn, (eipaig FA, chanics, wans. Thomas J.17s Hans Kelsen in Vaihinger’s theory of fictions, nevertheless, owing to various misun- -andings that have arisen from these references, I no longer wish to al to Mach and Vaihinger. What is essential is that the theory of the basic norm arises completely from the Method of Hypothesis'® devel- oped by Cohen, The basic norm is the answer to the question: Whatis the presupposition underlying the very possibility of interpreting material facts that are qualified as legal acts, that is, those acts by means of which norms are issued or applied? This is a question posed in the truest spirit oftranscendental logic. Jin the resolution of the concept of person, the Pure Theory of Law also distinguishes itself from Cohen's legal philosophy, which retains the concept because there are concealed b it those very ethico- metaphysical postulates that Cohen is unwilling to forgo. The Pure ‘Theory of Law, recognizing the concept of person as a substantive con- cont, as the hypostatization of ethico-political postulates (freedom and property, for example), resolved this concept in the spirit of Kantian phi- losophy, where all substance is to be reduced to function, Cassirer, one of the best of the Kantians—while he was a Kantian—has shown this in his fine book.” ‘With these remarks, my dear Dr. Treves, Ihave scarcely said anything new to you. Perhaps, however, they will serve to reinforce your own views on the essence of the Pure Theory of Law. PS, § 24 (at pp. 96-100. 15-40, OF couuse Keleen Is not suggesting ‘determining principle’ of the [aw ative character of the law PS: ‘ant scholat and philosopher. be known as the ‘patchwork theory’ is best ides Als-Ob (Betln: Reuther® Rei znch, Trubnet his eatlior years the Jeading second-generation figure Mayburg Se im. Kelaen's reference to Cassier’s fine boa! Substanabegrff und Funktionsbegriff (Becin: B. Cas epr. Darmsta ahaftiche Buchgeselachaft, 1990), discussed by Kelsen in ‘Stant und Recht Jer Exkenstnistnit, ZUR, 2 (1921), 452-810, at 464-7, repr, SYSB $6 33-45, § 35 105-8. Cassie's boo iss i Curtis Swabey and Masi Collin Swabey erates A Letter to Renato Treves 175 As you may already have learned, I was ousted from my position at the University.2® In the fall, I am going to the University Institute for International Studies in Geneva, where { have made a three-year com- mitment and will be lecturing mainly on the theory of international law. Ifyou ever happen to be in Geneva, ! should be very pleased indeed to be able to welcome you there. ‘With warmest good wishes, Iremain, Yours since Hans Kelsen [signature] ious ‘Lav for the Restoration of the Profe 1933 from his university post in Colo ind der Nesionalsazializmus (Cologne and