I. The Value of Silence
When everything else fails, Hans Kelsen is the go-to straw man. Caricaturing the Pure Theory of Law (hereafter PTL) is an established sub-genre of legal scholarship. A recent post in Verfassungsblog by Paolo Sandro – replying to an article by Jan Komárek – is but the latest in a long line of texts in this field. Even if we set aside our qualms with Sandro’s interpretation of the PTL, his essay makes existential claims about the nature of legal scholarship: It propagates an activist type of academic who should not remain silent on socio-political issues. Furthermore, the ease with which Sandro pronounces one side a winner in the perennial debates on philosophy of science is a tall order in itself. The far-reaching character of his claims merits attention.
II. Jurisprudence and Philosophy of Science
Sandro takes issue with the PTL’s concept of ‘purity’, in particular with the postulate that legal scholarship should be free from ‘political ideologies’. He is convinced that ‘[t]he idea that scientific truth – at least in social sciences – can be established “objectively”, and independently of evaluative choices, has been thoroughly debunked for at least four decades now’. If that were obvious, if in truth ‘we now know, of course, that legal science doesn’t need to be purified of anything’, the PTL would be an epistemologically naïve enterprise and dangerous to boot. But neither is that so simple nor has Sandro convinced his readers that scholarship should be impure – namely: that it should commit methodological syncretism by admixing legal and other types of scholarship or turn itself into a vehicle for the pursuit of ideological goals and gung-ho political activism.
Firstly, the distinction between natural and social sciences is a fragile one. The philosophical problems in one scientific field are not radically different from those in any other field, despite the fact that only natural sciences have been axiomatized – this is a matter of cultural coincidence, not of logical necessity. Secondly, Sandro misrepresents the landscape in the philosophy of science. Admittedly, theoretical statements are strictly speaking not statements about the world, but about ‘theoretical constructs’; the ‘myth of the given’ was rightly criticised. And the idea that scientific theories can be assessed against reality itself is problematic, if not obsolete. However, the salience of the respective cognitive and linguistic background or of the scholar’s evaluative assessments does not mean that at its core everything is political.
Knowledge depends on and is a function of a series of value judgments. This is explicitly acknowledged by the PTL, which openly restricts legal scholarship to the description of those coercive normative orders which are largely effective and institutionalized. Every scientific model must isolate parts of reality (target systems) to examine them, and we are all dependent on linguistic and methodological pre-commitments. None of this renders the PTL’s scientific programme inviable or hinders research results from being subjected to an intersubjective appraisal by peers.
Sandro believes that ‘law is inherently and constantly responsive to, if not partially constituted by, its theoretical elaboration’, so that a self-proclaimed PTL would be misguided from the outset. It is far from clear how such a claim of the (partial) constitution of law through its ‘theoretical elaboration’ could doom the project of a specifically juridical description of the legal order which refuses to surrender to political activism.
Scientific theories are widely considered to be autonomous. Reality – physical as much as social – cannot be scientifically grasped in a non-theoretical way. In this respect, modern philosophy of science concurs with, rather than contradicts, one of Kelsen’s major insights: that legal orders are self-programming (eigengesetzlich) and operate according to a structurally determined and semantically open code with the help of which they articulate reality and constitute legal meaning. Moreover, Kelsen’s concept of the descriptive legal proposition (Rechtssatz) already embraces the idea of a doctrinal reconstruction of the law. The Rechtssatz, he stresses, is nota ‘mere repetition of the positive norm’; its function is the specification and systematisation of static law, enabling thus the reconstruction of the legal order as a complex adaptive system (nomodynamics).
The members of the Vienna School of Jurisprudence shared the ambition of ‘rais[ing legal scholarship] to the level of a genuine science’ and thereby ‘demythologizing legal thinking’. In that context, Kelsen himself recurred to the postulate that the method ‘constitutes’ its own object: the law as object of inquiry is to some extent a product of the methods chosen to investigate segments of reality. The constitutive nature of cognition was then and continues to be state of the art in the philosophy of science and is not unique to legal scholarship or social sciences. Sandro’s ‘theoretical elaboration’ is, hence, not in any position to harm the PTL after all – it is an unmissable cornerstone of the latter’s approach.
To flesh out the ‘theoretical elaboration’ claim, Sandro imports an argument from his new book: ‘legal science bears an inherent reflexive quality, in the sense that it can performatively impact and ultimately modify its very object of study’. Whilst it is trivial to say that ‘claims that are not normative […] can pragmatically impact the law as it is’, this can only come to pass if they happen to be integrated into the law by way of legal procedures – and not by legal scholars directly. The mere fact that legal officials consciously or subconsciously adopt models or doctrines as background or guidelines to their decisions, does not imply that a descriptive-reflexive, exclusively juridical (‘pure’) approach to the legal phenomena is nonsensical. Acknowledging the interplay between legal theory, legal doctrine and the law does not necessitate conflating the levels of analysis of the law and creation thereof. Legal scholars remain unauthorised to create or change the law by way of ‘theoretical elaboration’ – whether pure or impure.
III. Fighting ghosts with a straw man
Contrary to what persistent efforts to refute the ‘ghost’ of the PTL might suggest, the latter does not inform a great deal of Western legal scholarship. If there is a ‘ghost’ hunting sub-genre in legal scholarship, then those indefatigable ghostbusters are going after the embodiment of (recurrent) misunderstandings, misrepresentations, and misinterpretations of basic concepts of the PTL, not after PTL itself. What is more, Sandro’s arguments are often eerily similar to those developed by the PTL which he purports to expose:
(1) Discretion. Sandro laments that ‘any knowledge of a legal system which does not include also awareness of how the law works in action […] is, at best, defective’. Given that the Vienna School famously introduced ‘nomodynamics’ in the jurisprudential repertoire, it is peculiar that someone would make this point as a criticism of the PTL: The analysis of how the law is structured and how it changes is an essential part of its research programme. The law is a process of self-referential and partially self-determined decision-making combining rule application and creation. Since the application of the relevant rules cannot possibly be determined in every direction by the applicable rules themselves every authorisation rule offers no more than a set of equally valid outcomes. Discretion is an ineradicable feature of law. However, legal officials do not have unbridled freedom; they remain bound by the law. Besides, inherent discretion for legal officials is not a carte blanche for legal scholars to implement their personal values while cognising the law.
(2) Efficacy. Sandro points to the problem of the efficacy of the legal system as a ‘part of the legal knowledge’. Kelsen saw a minimum level of efficacy as a condition for legal validity and recognised that efficacy and validity depend on a special form of ‘belief’ of legal subjects and officials. The PTL’s idea of the law as a normative schema which organizes and distributes power in a society, is, furthermore, an explanation of the relationship between validity and efficacy. Legal scholarship lacks, however, the wherewithal to investigate this relationship. The PTL does not negate the intrinsic value of such inquiries; it merely denies that a socio-cultural view of the law is pertinent to doctrinal analysis. The PTL does not want to be a theory of everything; it claims to have its own contribution to, and offer a valid perspective on, the understanding of the law. It relies on a structural analysis of the inner mechanics of a type of normative systems, based on the presupposition that by and large effective normative systems are legally valid. Whether the legal addressees’ perception of justice plays a role in the acquisition, maintenance and loss of ‘legal faith’ or efficacy, is better investigated by means of (legal) history, psychology or sociology. Investigating a problem from multiple perspectives is akin to travelling to multiple destinations: It cannot be done simultaneously.
(3) “Unlawful law”. Sandro’s ‘requirement [for scholars] to denounce violations […] of constitutional norms and principles’ is also – regardless of the emotive language – part of the PTL’s model. Kelsen’s (and Adolf Merkl’s) theory of the hierarchy of norms (Stufenbaulehre) provides a method to analyse the processes of law-creation and law-application from a legal point of view. The theory of the Margin of Error (Fehlerkalkül) explains the possibility of “unlawful” but valid legal decisions and can be applied to make sense of the problem of “unconstitutionality”, while accommodating disagreements about the legal conformity of legal norms. The Vienna School came up with different models for dealing with the ‘legal fact’ of so-called legal errors. This is unsurprising insofar, as Kelsen was the main architect of the Austrian constitution of 1920, which pioneered the establishment of a specialized constitutional court in Europe, and also a judge at the Austria’s constitutional court from 1919 to 1930.
Nothing in the idea of methodological purity prevents legal scholarship from addressing nomodynamics, efficacy and unlawful decisions. These issues are at the heart of the PTL’s research program: we do not have to leave the lectern for the pulpit to deal with any of these questions. If we could just stop being overawed by the adjective ‘pure’, we could advance knowledge using a theory that zeroes in on the cognition of law and cognition of the law alone.
IV. Defending jurisprudence from “doctrinal” activism
Denying a clear-cut distinction between politics and legal scholarship is unconvincing not only on philosophical and legal-theoretical grounds; it also creates an unpalatable methodological muddle which politicizes legal scholarship and leaves activism without the jurisprudential and factual basis necessary for meaningful political claims. Methods are not sound when or because “we all” agree on them. On the contrary, scientific consensus presupposes a level of methodological rigour; otherwise, we are in danger of confusing cause and effect by reducing scientific knowledge to a popularity contest.
Arguing, as Sandro does, that legal scholars should do more than merely ‘tak[e] note of violations of constitutional norms and principles by the respective government’ also begs the question: Do constitutional scholars determine the unconstitutionality of certain actions with any sense of authority? Lacking a hotline to the Tribunal of Reason we can only settle for the legal officials authorised to resolve legal disputes. The PTL does not pander to the ‘professional concerns of the jurist’, who ‘is reluctant to give up believing and persuading others to believe that, armed with his science, he knows how social conflicts of interest are to be solved “correctly”, that because he understands the law, he is also called upon to shape its content’. With its plea for methodological self-restraint, it counters the habit of making ‘political demands in the name of legal science’.
The demand for ‘purity’ does not impose silence on political or moral matters nor does it prevent academics from stepping into the pulpit to defend causes they consider vital, as Kelsen himself did several times. It simply reminds scholars that their political opinion has the same status as anyone else’s and that they are not tasked with law-making. The PTL argues for a dual separation: on the one hand, a separation of scholarly methods where each discipline confines itself to the problems within the framework of its own methodology; on the other hand, a separation of cognition from norm-creation – legal academics who spuriously opine on political issues go far beyond what can be validated by the underlying methodology. These separations are certainly not the reason why many legal scholars ignored or even endorsed the ‘atrocities of the first half of the 20th century’ – Kelsen, a Jewish scholar forced to emigrate by National Socialism, did not hesitate to openly defend democracy.
The opposition between politically engaged and uncommitted scholarship is probably an eternal problem. People may be tempted into activism in turbulent times, but chasing ghosts with a straw man does not seem to be a productive way of helping engaged scholarship to succeed. In the meantime, it would be wise to mind the gap between the lectern and the pulpit. The PTL offers a useful toolkit to keep them apart.
Suggested Citation: Kyriakos N. Kotsoglou and Rodrigo G. Cadore, The Lectern and the Pulpit. Mind the Gap!, Int’l J. Const. L. Blog, Apr. 2, 2022, at: http://www.iconnectblog.com/2022/04/the-lectern-and-the-pulpit-mind-the-gap/