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Kelsen's Transcendental Argument – A Response to Stanley Paulson

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It has been recently argued, by Stanley L. Paulson, that the transcendental argument Kelsen offers to ground the unicity of his explanation of the normativity of the law fails to do its job. Having dismissed iusnaturalism and fact-based legal positivism, Kelsen is unable to produce a conclusive argument in favour of his pure theory of law, since it is always possible to come up with a new type of theory different from those doctrines by mixing up their central tenets. So, according to Paulson, the transcendental aspirations of the pure theory are to be abandoned. This result has lead him to find new interpretations for the a priori categories that make up the Neo-Kantian apparatus present in Kelsen's work, with special attention to the basic norm, given that it stands at the centre of Kelsen's explanation of such notions as validity, obligation, empowerment and so on.

I propose to show that Paulson's critique on Kelsen's transcendental argument is not so devastating as it might seem at first sight. I design an strategy that answers Paulson's challenge and preserves the force of Kelsen's argument. I then reject, based on textual evidence, his two alternative interpretations of the basic norm. Lastly, I examine the influence on Kelsen of the Marburg Neo-Kantians, specially of its leading figure, Hermann Cohen, to underlie the transcendental import of the basic norm. My conclusion is that, what I call Kelsen's transcendental normativism, is up and running despite Paulson's farewell.
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Keywords: BASIC NORM; HERMANN COHEN; KELSEN; MARBURG NEO-KANTIANS; NORMATIVITY OF LAW; PURE THEORY OF LAW; TRANSCENDENTAL ARGUMENT; TRANSCENDENTAL NORMATIVISM

Document Type: Research Article

Publication date: March 1, 2017

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  • Archiv für Rechts- und Sozialphilosophie, edited by authorisation of the International Association for Philosophy of Law and Social Philosophy (IVR), is an international, peer-reviewed journal, first published in 1907. It features original articles on philosophical research on legal and social questions, covering all aspects of social and legal life.
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