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Stanley L. Paulson: 'Hans Kelsen's Neo-Kantianism Falls Short of the Mark'

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University of Surrey School of Law

Frank Whittle Building (AB)

Fifth Floor

Guildford

GU2 7XH

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It is our pleasure to invite you to a Hart Seminar by Stanley L. Paulson. This is an optional pre-read seminar, and the reading will be circulated one week prior to the event.

Abstract: Kelsenian legal interpretation – along with its related fields, legal cognition and legal science – proves to be a wide-ranging and multifaceted motif. The opening is straightforward: the doctrine of the Stufenbau supplants traditional legal interpretation. But then Kelsen is confronted on the various Stufen – the levels of the hierarchical construction – with questions of interpretation. To cope with them, he takes as his point of departure a distinction between two species of law, a neo-Kantian notion of the law qua object of legal cognition and the law qua politics. Legal science captures the first species, and lawmakers’ acts of will are the focal point of the second. The lawmakers’ acts of will are purportedly constrained by legal science, whose operative notion, cognition, is supposed to set down the limits of what count as valid legal norms. But the putative constraint on lawmakers that stems from legal cognition falls short of the mark. It may serve as an ideal, but not as a bona fide constraint. Quite apart from any constraint set by legal science, acts of will – the second species of law – do in fact turn up as legal norms. If Kelsen’s notion of legal cognition, and with it the first species of law, is neo-Kantian in origin, how does its falling short affect the neo-Kantian dimension of Kelsen’s Pure Theory of Law?

Stanley Paulson is the William Gardiner Hammond Professor of Law and Professor of Philosophy (emeritus) at Washington University in St. Louis and a senior research fellow on the Faculty of Law at the Univeristy of Kiel. Professor Paulson’s specialty is European legal philosophy and legal theory, and he has written a great deal on the work of the legal philosopher and constitutional theorist Hans Kelsen. Paulson writes in English and in German, and his work has been translated into seven foreign languages.

Professor Paulson's seminar is part of our Hart Seminar Series, which features a diverse group of leading scholars working at the intersection of law and philosophy. Hart Publishing contributes generous support to make the seminar series possible.

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University of Surrey School of Law

Frank Whittle Building (AB)

Fifth Floor

Guildford

GU2 7XH

United Kingdom

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