TY - CHAP
T1 - Hans Kelsen and Southwest Neo-Kantianism on Natural Law
T2 - Transcendental Philosophy beyond Metaphysics and Positivism
AU - Krijnen, C.H.
PY - 2019
Y1 - 2019
N2 - This chapter argues that Kelsen’s discussion and conception of the foundations of law misunderstands essential aspects of the foundations of normativity. Kelsen seems to miss the point of Kant’s transcendental turn in conceiving philosophical foundations, so important for the development of the philosophy after Kant, not least for the neo-Kantians. The main schools of neo-Kantianism have their central, common feature in stressing and rejuvenating exactly Kant’s transcendental turn. This emphasis on the transcendental turn is prevalent in much of the Southwest neo-Kantian remarks on natural law. Kelsen, however, repeatedly presents Kant as a metaphysical thinker. This distinguishes Kelsen from the leading schools of neo-Kantianism, who consider Kant a post-metaphysical philosopher. The influence of neo-Kantianism, especially that of the Southwest School, on Kelsen should be seen, therefore, in an instrumental rather programmatic sense. Accordingly, the chapter will apply essentials of Kantian and neo-Kantian philosophy to Kelsen’s analysis of law. From this, it will be argued that the hypothesis of law which underlies Kelsen’s legal positivism is an inadequate expression of the idea of law.
AB - This chapter argues that Kelsen’s discussion and conception of the foundations of law misunderstands essential aspects of the foundations of normativity. Kelsen seems to miss the point of Kant’s transcendental turn in conceiving philosophical foundations, so important for the development of the philosophy after Kant, not least for the neo-Kantians. The main schools of neo-Kantianism have their central, common feature in stressing and rejuvenating exactly Kant’s transcendental turn. This emphasis on the transcendental turn is prevalent in much of the Southwest neo-Kantian remarks on natural law. Kelsen, however, repeatedly presents Kant as a metaphysical thinker. This distinguishes Kelsen from the leading schools of neo-Kantianism, who consider Kant a post-metaphysical philosopher. The influence of neo-Kantianism, especially that of the Southwest School, on Kelsen should be seen, therefore, in an instrumental rather programmatic sense. Accordingly, the chapter will apply essentials of Kantian and neo-Kantian philosophy to Kelsen’s analysis of law. From this, it will be argued that the hypothesis of law which underlies Kelsen’s legal positivism is an inadequate expression of the idea of law.
UR - https://brill.com/edcollbook/title/38841
U2 - 10.1163/9789004390393_010
DO - 10.1163/9789004390393_010
M3 - Chapter
SN - 9789004390386
T3 - Studies in Moral Philosophy
SP - 289
EP - 326
BT - Hans Kelsen and the Natural Law Tradition
A2 - Langford, Peter
A2 - Bryan, Ian
A2 - McGarry, John
PB - Koninklijke Brill
ER -