Pure formalism?

Kelsenian interpretative theory between textualism and realism

Christoph Bezemek

pp. 249-263

in: Hans Kelsen in America, Berlin, Springer, 2016

Abstract

Positivist theory, to state the obvious, is not held in high regard, at least among some members of U.S. legal academia. This position, it seems, is partly owed to alleged methodological deficiencies of the positivist approach: A formalist, or even "hyperformalist" theory, positivism, it is sometimes suggested, is destined to entail a "hypertextualist" and thus in any case inadequate view on interpretation. Focusing on the Kelsenian variety of legal positivism one may wonder whether this presumption actually proves to be correct. Arguably Kelsen's theory is to be understood as a formal approach to law. Still: Whether the appreciation of positivist thought as "formalist" or even "hyperformalist" actually does apply obviously depends on the definition of formalism. But, even if Kelsen's theory of legal positivism is to be considered a formal approach to law, are the methodological consequences thus implied valid? Does the pure theory of law call for a purely formalist theory of interpretation? This essay argues it does not.