H. The Pure Theory of Law — Science or Political Theory?

The preface to the first edition of the Reine Rechtskhre published in 1934

contains Kelsen's most famous description of the character of his legal theoretical

project. It declares that the primary aim of the pure theory of law is to raise jurisprudence

to the level of a genuine science, a science characterized by the hallmarks of objectivity

and exactitude. Kelsen claims that "the pure theory of law aims solely at the cognition of

its subject-matter." It is concerned to describe the law as it is, not to tell us how it ought

to be. The pure theory is thus based on a methodological principle that, Kelsen argues,

should "appear obvious" but that has nevertheless so far been neglected: We have to free

legal cognition of all "foreign elements", "to eliminate from this cognition everything not
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belonging to the object of cognition precisely specified as law".

However, the sense in which this methodological principle is uncontroversial is

unlikely to mark the difference between the pure theory and other jurisprudential

approaches and to explain the superiority of the former over the latter. Legal theorists of

different stripes disagree, as we have seen, over what is to count as "the object of

cognition" specifiable as law. The methodological claim that legal theory should focus on

analysis of the law and exclude from its view everything not belonging to that object of

cognition cannot preempt such debates. It presupposes an answer to them. The claim that

legal theory must be a science can become an operative methodological principle only

once we know what it is supposed to be a science of A theory of the law should be

defended as the best theory of what we can identify, on pre-theoretical grounds, as law or

Hans Kelsen, Introduction to the Problems of Legal Theory. A Translation of the First Edition of the
Reine Rechtslehre of Pure Theory of Law, transl. by Bonnie Litschewski-Paulson! Stanley L. Paulson
(Oxford 1992), 1.

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