Hans Kelsen’s Psychoanalytic Heritage—An Ehrenzweigian Reconstruction

Abstract

American legal scholarship has constantly challenged Hans Kelsen’s jurisprudence. However, the skepticism has motivated his defense of the pure theory of law’s alleged substantial and explanatory gaps. The following chapter analyzes and categorizes some of the arguments Kelsen develops in his defense and, in so doing, identifies human irrationality as an important, albeit undisclosed, hypothesis informing the pure theory of law. Claiming inter alia that a scientific, hence, analytical inquiry on justice is impossible, Kelsen traces two major jurisprudential issues back to their roots in human emotion. Nevertheless, his argument lacks further elaboration on the scholarly framework through which one might categorize human irrationality. The chapter also touches upon how psychoanalytical approaches to the law developed in the 1960s can fill the conceptual gap.