Purity and constraints in legal theory. Some remarks on Paulson’s Analysis of the neo-Kantian dimension of Kelsenian theory of law

Abstract

Hans Kelsen rejects both natural law theories and fact-based positivism. Rather, following certain ideas inspired by the neo-Kantian philosophy, he attempts to preserve a clear separation between law and facts as well as between law and morality. As it is well-known, Kelsen?s Neo-Kantian ideas are combined with other theses extracted from a positivistic vision of the law. However, as Stanley L. Paulson shows in his very fine paper about the limits of the kelsenian doctrine, Neo-Kantism and positivism cannot be easily articulated in a coherent picture. In particular, Paulson analyses two closely connected problems. On the one hand, the relation between legal interpretation and the ?irregular? creation of norms (i.e., the problem of constraints) and, on the other hand, the limits of purity (i.e., the philosophical problem). In this paper, I will briefly comment on both problems mentioned by Paulson. First, I deal with the philosophical problem and I focus on (i) the distinction between ?Is? and ?Ought? and (ii) the rejection of Natural Law Theories. Second, I analyse the problem of constraints and I pay attention to certain consequences that stem from the validity of irregular norms.