I've been reading Kelsen's Pure theory of law, and have been finding his conceptualist methodology fascinating. The entire idea of construction of concepts before delving into legal discourse seems to be a fresh change from the empiricism whereby legal concepts as such are derived from the society.
Kelsen's calls them "concepts", but to my mind, it is better to call them "assumptions" because Kelsen does not propose their absoluteness. Rather, he actively denies the same. This is totally in contrast to empiricism, where by virtue of being derived from the social experience, the concepts, in essence become facts. Absolute, and the single truth. The latter is limiting in many ways because, within its ethics, it prevents multiple approaches to the same problem.
Though again there is sense in distinguishing between what Kelsen understood as the ethics and scope of a discipline. (ethics is just a term I'm using here- nothing Kelsenian about it as far as i know.) Ethics denotes what would be allowed in the vision of a particular discipline, while scope defines the way a particular discipline would proceed based upon its concepts, or assumptions. It is something like saying, "I think it will rain today, so I will take an umbrella with me outside. I know you think it will not rain, so you are not taking your umbrella. I'm not saying that your notion about no rain is wrong, but I would rather not proceed upon it." Here the concept for me is that it will rain and I premise my theory about taking an umbrella upon this concept. The concept for you is that it won't rain and you premise your theory about not taking an umbrella upon that. Neither of us can know for sure if it will actually rain, so I cannot outrightly refute your concept. Consequently, rather than being absolute, my concept will remain only an assumption. On the other hand, if I were an empiricist, that it would rain would be a fact I'm absolutely certain about.
In this regard, I think I would be more inclined towards the conceptualist methodology than the empiricist one, simply because facts are not truth. Which means that facts change with changing perspectives- the situation is somewhat like that of Schrodinger's Cat in a box which can never be opened, and hence the truth cannot be determined. A more illuminating example would be perhaps be to think of the idea of life after death. For those who believe in it, it is fact. For those who do not, it is not. And absolutely no one can know the truth. Similarly, when a concept is made to root in a fact or empirical observation, it does two things: a. refutes the viability of concepts rooted in different facts. b. ignores that the truth about the subject lies in something more than a fact. Which is where, in my view, conceptualism prevails.
Prima facie, Kelsen's approach might reek of philosophical nihilism. But for Kelsen, it didn't mean that this whole exercise of formulating theories was a dead end, as the truth of any could not be determined. Kelsen, instead argued that each of these various assumptions, or concepts in his words, were valuable in context of their own discipline, and only when all of these discourses are taken together, that a real picture of the concerned subject matter begins to emerge. This way philosphical absurdism rather than nihilism would more be Kelsen's line of thought.
What is important is that Kelsen uses exactly this argument to establish law as an independent discipline, clear of political, social and economic influences. In doing so, Kelsen is not unaware that such influences in deed have a significant effect upon shaping the law. But for Kelsen legal discourse is a matter of academic convinience, and not truth. Therefore legal concepts must be totally divorced from the "non-legal" influences, thus carving the legal discipline as distinct. This, in no way means that legal concepts are the only way to understand law, or even that law can be fully understood merely by the use of legal concepts. This is where Kelsen changes law from being a mere tool for the exercise of political power as envisioned by classical postivism.
I would like to compare this idea to my understanding of an anarchist conception of law, whereby law is not afforded the status of being a distinct discipline. This is basically because for the anarchist, law acts as something external to an individual. Which means that in many ways, law would sanction violence and coercion upon individuals due to some expectations and obligations under law. I was very intrigued to find that Kelsen had this point in mind too. He says in context of politics, "If the masks are stripped away from actors on the political stage and we no longer see the impersonal state 'condemning and making war', what is revealed is the reality of 'men putting coercion on other men.' (1973:67)" [Quoted from Cotterell 2003:36]
Interestingly, Cotterell sees this as Kelsen's committment to democracy, and uses it to contrast Kelsen against the Austinian illimitable sovereign. In my view, however, it is more. It is a warning against using "supra- individual forms" (a term used by Cotterell) to view human actions, without taking into account that all these supra-individual forms are built upon a certain set of concepts which are essentially assumptions and not absolute truth. Because if this happens, the danger that violence will be justified along with curtailment of freedom, increases infinitely. Consider the sovereign issuing a command to put a person to death. Politically, the action of putting that person to death would thus be justified. But legally, if that person has not committed any offence which warrants such punishment, this action cannot be justified. Thus violence which was being justified on account of politics, in this case would not be justified on account of law. There is an obvious distinction between Austinian and Kelsenian conception of law to be shown here. But I think Kelsen's point here is much larger: that justifying any action from the point of view of only a single discipline is a folly. This is more about than just separating law and politics.
I actually find here some parallels with the anarchist conception of how to treat or view human actions. Anarchists condemn law as a separate discipline only because they assume that a single discipline would be used to understand and put into perspective, human actions. This in turn, would enforce violence and curb human freedom, because human actions and experiences are too rich to be understood purely in a legal perspective. Kelsen in fact, argues the same. But then he says that a single discipline should not be used to understand any human action, thus solving anarchism's problem with recognition of law as a discipline. Though of course, how this is to be achieved, still remains obscure.
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