Legality and legitimacy in Hans Kelsen's pure theory of law

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My thesis attempts to show that Hans Kelsen's Pure Theory of Law successfully occupies a middle ground between natural law and legal positivism. I argue that the strength of the Pure Theory of Law cannot be brought out fully unless it is read in the light of Kelsen's political theory which has received very little attention in previous scholarship. Kelsen's theory of the basic norm, if interpreted against the background of Kelsen's political theory, turns out to be related to a constitutional ideal I call the 'utopia of legality'. This constitutional ideal is based on the claim that the full conformity of exercises of political power with standards of positive legality can potentially amount to a sufficient condition of the legitimacy of the exercise of political power.Positivist legal theorists inspired by Kelsen's work failed to appreciate the political-theoretical potential of the Pure Theory of Law and thus turned to a narrow agnosticism about the functions of law. The Pure Theory of Law, I conclude, may offer a paradigm of jurisprudential thought that could reconnect jurisprudence with political theory as it was traditionally understood: namely as a reflection on the best constitution and on the contribution that different legal actors and institutions can make to its realization.The utopia of legality, I argue, is an attractive and stable constitutional ideal because it is independent of a 'thick' conception of community and compatible with the persistence of a high degree of substantive moral disagreement. I defend the view, moreover, that Kelsen's Pure Theory of Law provides us with the outlines of an understanding of the rule of law, of democratic legislation, and of formal constitutionalism which undercuts the common assumption of an inevitable tension between these three key elements of modern western polities.

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