Hans Kelsen's Concept of Normative Imputation

Abstract

This article compares and contrasts Hans Kelsen's concept of normative imputation, in the Lecture Course of 1926, with the concepts of peripheral and central imputation, in The Pure Theory of Law of 1934. In this process, a wider and more significant distinction is revealed within the development of Hans Kelsen's theory of positive law. This distinction represents a shift in Kelsen's philosophical allegiance from the Neo-Kantianism of Windelband to that of Cohen. This, in turn, reflects a broader disengagement of The Pure Theory of Law from the more direct connection with a political project of a civitas maxima envisaged by the Lecture Course.

The Legal Conceptions of Hans Kelsen and Eugen Ehrlich: Weighing Human Rights and Sovereignty

“…With this unique method of imputation, the legal science is self-sufficient and does not need to address other sciences in order to assert the validity of the law and explain the specific modus vivendi of the law (the binding character of legal rules). 71 Traditionally, in order to justify the binding force of the law, lawyers looked for moral principles, religious dogmas, or social facts (like that of solidarity or reasonableness) that make people believe that they are under an obligation to obey certain posited legal rules and to respect the axiomatic principles that underpin these rules. In Kelsen's view, this moral absolutism pollutes the methodological purity of jurisprudence.…”

The Purity Thesis

“…55 Imputation is, I believe, the best of Kelsen's candidates for the juridical category, but the matter remains controversial. See, e.g., Alexy 2002b;Heidemann 2005;Paulson 2012, 102-11;and Langford and Bryan 2013. See also Leonid Pitamic's interpretation of imputation: Pitamic 1917, 365-6, quoted in Pavčnik 2014.]…”