Fictionalising Kelsen’s Pure Theory of Law

Book section

This essay raises a new challenge for Hans Kelsen’s The Pure Theory of Law, i.e. what I call the Cognitivist Challenge. This challenge concerns the question as to how to retain Kelsen’s view about relative legal norms, i.e. that one can objectively cognise these norms, while not rejecting his view about absolute moral norms, i.e. that one cannot objectively cognise those norms. After explaining the Cognitivist Challenge in detail, I will present Positive Legal Fictionalism as a solution to it. I will claim that Positive Legal Fictionalism is rooted in Kelsen’s own statements and provides the specific epistemic advantages that Kelsen’s project of cognising the law requires. Positive Legal Fictionalism thereby deepens the understanding of Kelsen’s project as a ‘theory’ and as ‘pure.’

Authors: Kiener, M

• Publication status: Published
• Peer review status: Peer reviewed
• Publisher: Franz Steiner Verlag
• Pages: 99-121
• Series: Die Reine Rechtslehre auf dem Prüfstand. Hans Kelsen’s Pure Theory of Law: Conceptions and Misconceptions.
• Series number: 163
• Publication date: 2020-03-17
• Acceptance date: 2019-04-30
• ISSN: 0001-2343
• EISBN: 9783515125796
• ISBN: 9783515125680
• Language: English
• Keywords: FFR; fictionalism; basic norm; Kelsen; legal positivism; validity; cognition