On Eugenio bulygin's Kelsen
| Autor | Stanley L. Paulson |
| Páginas | 431-448 |
23. ON EUGENIO BULYGIN’S KELSEN
Stanley L. PAULSON*
INTRODUCTION
Admirers of Eugenio B are inspired not only by his philosoph-
ical prowess but by a joie de vivre unique to him. Since the best form of
admiration that can be accorded to a philosopher is serious criticism, I
examine here, inter alia, certain claims of B’s in one of his richest
and most provocative statements on Hans K’s legal theory, «An
Antinomy in K’s Pure Theory of Law» (1990) 1. B writes that
there are, in effect, two Ks, the Kantian K and the positivistic
K.
[W]e nd in K’s thought two groups of ideas that stem from quite
different philosophical traditions. These ideas are not only difcult to rec-
oncile but indeed are radically incompatible as I shall try to show in some
detail. Both the Kantian and the positivistic persuasions are vividly present
in K’s works, and some of his main tenets can be traced back to these
two greatly opposed philosophical traditions. Being incompatible, some of
his ideas stemming from one of these traditions must be eliminated in order
to render the Pure Theory of Law coherent 2.
* Christian-Albrechts-Universität zu Kiel. E-mail: spaulson@law.uni-kiel.de.
My thanks to another admirer of Eugenio B, Bonnie L P, for, as
always, discerning advice on matters of content and style, and to still another admirer, Pierluigi
C, for welcome comments.
1 B’s paper, «An Antinomy in K’s Pure Theory of Law», rst appeared in
Ratio Juris 3 (1990), 29-45, and has been anthologized several times — rst in Normativity and
Norms, ed. Stanley L. P and Bonnie L P (Oxford: Clarendon Press,
1998), 297-315, and more recently in B, 2015: 234-251. Certain views of B’s in his
paper of 1990 are corrected in B, 2013, see at note 18 below.
2 B, 1990: 236.
432 STANLEY L. PAULSON
Several of B’s motifs presuppose his periodization of the phases
of development in K’s legal theory. With this in mind, I offer, in the
rst section of the paper, a sketch of my own periodization, useful as a
focal point in my criticism of aspects of B’s periodization.
Following the sketch of my own periodization of K’s phases of
development, I turn, in the second section of the paper, to some of the
issues that arise in B’s periodization. He addresses both of the philo-
sophical traditions that he nds in K’s work, the Kantian and the
positivistic, identifying and analysing various theses. The yield is instruc-
tive. Noteworthy on legal validity, for example, is B’s sharp distinc-
tion between binding force and membership, along with his tidy charac-
terization of membership in terms of a recursive denition that dispenses
with any need for K’s notorious basic norm 3.
Still, there is a y in the ointment. In his periodization, B em-
ploys as one of his criteria the idea that «the Kantian and the positivis-
tic elements coexist more or less harmoniously» during «the rst period»
of K’s legal theory, which, according to B, runs from 1911 to
1940 4. But at both ends of B’s temporal spectrum, this claim of his
is mistaken. I return to the point below.
The rst and second sections of the paper, devoted to the periodiza-
tion of K’s legal theory, are followed by two sections on aspects of
K’s norm theory. In the third section, I turn to a compressed statement
of K’s phases of development in norm theory. In the fourth section,
I turn to K’s Spätlehre or late theory, where B’s rewarding pa-
per «On the Problem of the Applicability of Logic to the Law» (1983) plays
a key role. So far as I can tell, the paper remains largely unknown, having
appeared in German in a Festschrift for B’s colleague and friend,
Ulrich K. In the paper, B comments on K’s work on norm
theory during the last decade in K’s career.
1. A PERIODIZATION OF THE PHASES OF DEVELOPMENT
IN KELSEN’S LEGAL THEORY
The outlines of my own periodization can be summarized in terms of
three phases: the constructivist phase (1911-1919), including a transition
period from 1914 to 1919, then the lengthy, classical phase (1920-1960),
and, nally, the late phase or late theory, known in the literature as the
Spätlehre (1960-1971) 5.
3 See B, 1990: 243-246. Thanks to María Cristina R, we now have a com-
prehensive statement on B’s work on legal validity. R, 2021: 384-387.
4 See B, 1990: 236.
5 Hans K died on 19 April 1973. K’s younger daughter, Maria F, who
saw her father on virtually a daily basis during the last twenty years of his life, informed Bon-
nie and me during one of our visits with her in Kensington, California, that her father was not
engaged in research or writing during the last eighteen months of his life. For details on the last
years of K’s life, see O, 2020: 910-917.
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