KELSEN’S THEORY OF LEGAL INTERPRETATION

Abstract

While following the Stanley Paulson’s dichotomy, the paper analyses the negative and constructive aspects of Kelsen’s views on legal interpretation. The negative aspects refer to Kelsen’s critical approach to traditional legal science theory of legal interpretation for which issues of legal interpretation always, according to Kelsen, amounted to issues of cognition. In doing so, traditional legal science attempted, wittingly or not, as Kelsen asserts, to maintain an illusion of ever-present present legal certainty.

In analyzing constructive aspects of Kelsen’s views on legal interpretation, the paper analyses Kelsen’s concept of the object of legal interpretation, his concept of (legal) cognition, concept of indeterminacy of law, and his differentiation between the scientific and authentic legal interpretation.

Furthermore, Kelsen’s theory of legal interpretation is put into the context of other modern theories of legal interpretation, while placing Kelsen’s theory in the middle of the continuum in which end points represent radical cognitivist theory of legal interpretation and radical skeptical theory of legal interpretation.

The final part of the paper gives an analysis of Kelsen’s doctrine of tacit alternative clause and serious problems which this doctrine, according to many critics, poses to Kelsen’s theory of legal interpretation while putting in danger sustainability of his entire theory of law. The author examines the sources of this doctrine and in the end reaches the conslusion that this doctrine has its origins primarily in Kelsen’s peculiar understanding of the concept of validity, thus, for the purpose of saving the rest of the Kelsen’s theory of law, propositions to amend Kelsen’s concept of validity are analyzed.