ABSTRACT
Kelsen was hardly the first legal theorist to develop a normative epistemology. But the pure theory of law that, as indicated in the previous chapter, validates its epistemology through a complex interrelationship between law, sovereignty and scientific knowledge, can well be regarded as the culmination of such an approach. The main motivations behind Kelsen’s theory – as well as other formulations of a ‘normative science of law’ – are his Kantian and neo-Kantian affiliations (on Kelsen’s neo-Kantian sources of inspiration, see Paulson 1992). Even if Kant can with good reason be consequently regarded as the founding father of modern legal science, it would be equally correct to claim that Kant’s Rechtslehre was never the original inspiration for the developments that followed in the German speaking world and in the various other legal cultures that sought their intellectual inspiration from it. Indeed, one could even go so far as to argue that what followed developed partially as a critical reaction to Kant’s attempts to formulate the transcendental prerequisites of law (see Stammler 1902: 65-8; Kelsen 1994: 24-5). Before looking at the various other related theories of sovereignty that were
formulated at the time, a brief overview of the scientific tradition from which they arose is necessary. The tradition can be best described through the most vehement attacks against the remnants of natural law that compromized the newly found scientific status of juridical thinking. One of the central texts belonging to the critical reaction is Karl Bergbohm’s influential albeit argumentative confrontation with the legal theory of the nineteenth century. Bergbohm’s book Jurisprudenz und Rechtsphilosophie, originally published in 1892, is an attempt to establish jurisprudence and the philosophy of law as a science that, unlike the tenuous ‘philosophizing’ of advocates of speculative philosophy and natural law, is written by jurists for jurists. It is, then, a book written by
professionals for professionals. The central objective of Bergbohm’s ‘historical positivism’ is to guarantee the scientific status of law. But unlike Kant who, as a philosopher, aspired to illuminate the conceptual
shortcomings of jurists too entangled in the everyday solutions to their practical interests, Bergbohm is now reclaiming law back from the metaphysicians. This must be done by, first and foremost, reviving the legal scientist’s interest in positive law. Bergbohm namely claims that all legal thinking, be it professional, academic, or lay, has always been contaminated by an unfounded and scientifically unsustainable dualism separating positive law from different representations of natural law (Bergbohm 1973: 116). The common characteristic of all representations of natural law is the identification of science with law in which case ‘ … the scientists themselves create autonomous law, and science is a source of law’ (Bergbohm 1973: 522). Bergbohm insists that within this dualism, positive law can never in itself be
normatively valid. Law seems to always require a substantial justification that can be derived from a wealth of transcendental sources such as reason, human rights or justice. The starting-point of classical natural law theories was customary law from which the individual elements of a given positive law were inferred. One could argue that, for example, the legal forms of land ownership, regarded as eternal and unchangeable, were developments from established customs and from the norms that regulated these customs. But coming into the new age, natural law is detached from an existing legal system built on the premises of positive law, and now, as a separate institution, it is referred to in order to raise the question concerning the scientific character of the legal system. The legal system, then, does not describe positive law in a systematic way but, rather, questions its justification. And this justification can only be validated if the origin of law is established as reason:
Up until now reason was the means for knowledge about a law that streams and flows from the ‘nature of man,’ but reason is itself now elevated into an immediate source of law, and natural law will henceforth be called a true law of reason. In the end, the common conviction of all philosophy of law that strives for such an absolute law is the following. Science must liberate itself from positive law and, rather, concentrate merely on the systematic knowledge that concerns the factual in social life. Science deals with normal law because it is reason, and as such it requires the explanation of the idea of law that is inherent in man.
