Cognition and reason

rethinking Kelsen in the context of contract and business law

Jeffrey M. Lipshaw

pp. 265-296

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

Abstract

This is a reconsideration of Hans Kelsen's pure theory of law from the standpoint of a long-time business lawyer, contract theoretician, and Kant-influenced epistemologist. The essay: (a) reconsiders the pure theory in the context of contract and business law (i) in light of how legal reasoning operates (something the pure theory accurately characterizes) in contract and business law (as, for example, in the classic consideration/promissory estoppel case, Allegheny College), and (ii) with a more faithful or more satisfying account than Kelsen provided of the kind of knowledge we obtain if we are going to think of contract and business law as a kind of science, whether descriptive or normative, under Kantian conceptions of cognition and reason; and (b) considers the practical and theoretical implications of the foregoing somewhat obscure and arcane distinction, if not for the contract and business lawyers who actually do the practicing, then at least for those who teach them. Facing reality before deciding on a course of action is often the hardest task for lawyers and their clients. I am thus skeptical of a legal 'science" that seeks an ironically and paradoxically abstract positive law of contracts, an ideally coherent doctrine that exists somewhere "out there," removed from its application to real world experience.

Cited authors

Kant Immanuel

Kelsen Hans