Introduction to the Problems of Legal Theory
Hans KelsenKelsen's Introduction to the Problems of Legal Theory is the first edition of his Reine Rechtslehre (1934), written when the neo-Kantian influence on his work was at its zenith. It presents the Pure Theory in its most characteristic and accessible form, arguing that legal science must be radically purified of moral and sociological considerations. Its central mechanism is the legal norm as a hypothetical judgment imputing a coercive consequence to a conditioning fact, and the hierarchical structure of the legal order. The work rejects both natural law and the reduction of law to social fact.
What is the central claim of the Introduction to the Problems of Legal Theory, and what does it reject?
The Introduction argues that legal science must be 'pure' — radically separated from both morality and sociology. It rejects natural law theory, which grounds legal validity in moral or metaphysical principles, and it also rejects the reduction of law to social fact, marking itself off from the then-prevalent form of legal positivism . The work's central mechanism is the legal norm as a hypothetical judgment that imputes a coercive consequence to a conditioning fact, not as a command backed by a psychological will . Legal obligation is defined as liability to coercion by officials, and all norms share the same structure: 'If event E occurs, official O is to order that coercive act C be directed against person P' .
Why is this 1934 first edition considered the most accessible statement of the Pure Theory?
Kelsen published this short treatise in 1934 when the neo-Kantian influence on his work was at its zenith, after an earlier 'constructivist' phase had been displaced by his effort to provide a neo-Kantian foundation for his theory . It is substantially shorter and more compact than the 1960 second edition, which doubled in length and added extensive bibliography. Scholars describe it as 'surely the most accessible' of Kelsen's many statements of the Pure Theory . The work covers law and nature, law and morality, the concept of the legal norm, the hierarchical structure of the legal system, interpretation, law and state, and international law.
How does this first edition differ from the 1960 second edition of Reine Rechtslehre?
The first edition (1934) is a short treatise of 171 pages presenting the Pure Theory in its neo-Kantian phase. The second edition (1960) more than doubled in length to 534 pages and represents the high point of the 'classical phase' of Kelsen's legal theory . The second edition also includes significant developments, such as the distinction between Nomostatics and Nomodynamics and clarifications about the relationship between validity and efficacy. The first edition, translated by Bonnie Litschewski Paulson and Stanley L. Paulson, was first published in English in 1992 by Clarendon Press .
What is the most common criticism of the Pure Theory's attempt at purity?
The most persistent criticism is that the Pure Theory's attempt to locate law in a 'middle realm' between absolute moral values and social facts fails on both sides. For some critics, the denial of the relevance of moral considerations made legal science sterile and useless; for others, the denial of the factual nature of law disconnected it from reality . Perelman's critique argues that court decisions are never formally deduced from law and rest on reasons whose value can be assessed by legal science, and that interpretation contributes to specifying the law's meaning in relation to cultural values . Kelsen's project is described as 'the most striking—and in many ways, still the most interesting—defense of a complete detachment view,' but one that ultimately failed because it identified detachment with antireductionism .
How did the Introduction's legal norm theory depart from earlier positivism?
Kelsen replaced the imperative theory of law — which treats legal norms as commands backed by a sovereign's will — with the concept of the legal norm as a hypothetical judgment. This was a deliberate 'conceptional shift': aiming at identifying the essence of legal norms, Kelsen abandoned the idea of the imperative and replaced it with the notion of a hypothetical judgment expressing the specific linking of a conditioning material fact with a conditioned consequence . The legal norm is not a command but a judgment of the form 'If A, then B ought to be.' This move allowed Kelsen to separate legal normativity from the psychological will of any lawgiver and to ground legal obligation in the structure of the norm itself.
What role does 'imputation' play in Kelsen's theory of the legal norm?
Imputation (Zurechnung) is the specific functional connection that Kelsen identifies as the law's particular lawfulness or autonomy. It links the conditioning facts — the events or behaviors that trigger legal consequences — to the sanctions or coercive acts that the legal order establishes. Imputation is the normative counterpart to causality in the natural sciences: where nature operates by cause and effect, law operates by imputation . This concept is central to the Introduction's account of the legal norm as a hypothetical judgment, because it explains how the 'ought' connection between condition and consequence is established without recourse to moral or psychological facts.
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How has the English translation of this work been received?
The Paulson translation, published by Clarendon Press in 1992, was the first complete English translation of the 1934 first edition. A partial translation had appeared as a two-part article under the title 'The Pure Theory of Law: Its Method and Fundamental Conceptions' . Reviewers praised the translation as 'excellent' and noted that the book's first thirty pages 'seemed to me to say the most important things, especially the first page which sets out the author's governing attitude, with an emphasis deserving note' . The translation included an introduction by Stanley L. Paulson and an annotated bibliography of secondary literature on Kelsen .
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