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Ratio Juris. Vol. 27 No. 2 June 2014 (17689)

Methodological Clarity
or the Substantial Purity of Law?
Notes on the Discussion
between Kelsen and Pitamic*
MARIJAN PAVCNIK

Abstract. Leonid Pitamic was convinced that law could not be understood and
explored by a single method aiming at a pure object of enquiry. He argued that it
was necessary to employ other methods besides the normative one (especially the
sociological and axiological methods), which, however, should not be confounded.
Methodological syncretism can be avoided by clearly distinguishing between
different aspects of law and by allowing the methods to support each other. By
following this guideline, and by arguing according to a clear method, we can also
open up a space for dialogue and for the juxtaposition of contrasting points of view.

1. Introduction
In the Foreword to the second edition of Hauptprobleme der Staatsrechtslehre (Main
Problems in the Theory of Public Law), Hans Kelsen (18811973) writes that the
Pure Theory of Law is the concerted work of a continually growing circle of
theoretically like-minded men (Kelsen 1923, XXIII).1 One person who joined this
circle was Leonid Pitamic (18851971). Kelsen recognised his valuable contribution
to the project of defining the basic norm as the presupposition of legal cognition.2
In the Preface to the first edition of Pure Theory of Law, Kelsen also speaks of a
number of like-minded individuals. The characteristics of his school, according
to him, is that each of us makes an effort to learn from the others without
abandoning his own programme (Kelsen 1934, IX).3 In the case of Kelsen and
Pitamic, these questions concentrate on the purity of the method of law and of its
substantial content.

* This article is an English summary of the plenary paper Methodologische Klarheit oder
gegenstndliche Reinheit des Rechts. Anmerkungen zur Diskussion Kelsen-Pitamic presented at the
25th Congress of the IVR, which was held in Frankfurt am Main in August 2011.
1
The English quotation is taken from Paulson and Litschewski Paulson 1998, 22.
2
Kelsen 1923, XV. The following articles by Pitamic are quoted in the cited work: Pitamic
1917, 1918, 1921b, 1922a. All these articles are reprinted in Pitamic 2005.
3
The English quotation is taken from Kelsen 1992, 1.

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Street, Malden 02148, USA.
 Methodological Clarity or the Substantial Purity of Law? 177

It would be false to say that Pitamic was not impressed or impassioned by the
Pure Theory of Law. As for questions addressing the understanding of law as a
normative system, Kelsens normative purism had a visible influence on him.
Kelsens starting point, i.e., that a norm (Sollen) can only arise from norms, not from
being (Sein), may have inspired Pitamics claim that the normative properties of law
can only be deduced from normative properties: What is of decisive importance
is only the relation of a group of norms defined by its formal characteristics
according to positive law, to the groups that are superior and subordinate to it
according to positive law, which is identical to the legal validity of the norm
(Pitamic 1922b, 9).
Pitamic extended the normative outlook also to the state, state organs, and the
relations between them. He already observed in his article, Plato, Aristoteles und die
Reine Rechtstheorie, that Plato, and most notably Aristotle, had followed a strict
normative model in their explorations of the notions of the state, the citizen, and
the law (Pitamic 1921b, 700), and had managed to avoid methodological syncre-
tism (ibid., 683). Drawing on the example of Aristotles Politics (Aristoteles 1989, III,
1278b), he illustrates how the idea of the state as an order, as a constitutional or
legal order, is fundamental to the notion of the state (Pitamic 1921b, 688). For any
association, what is relevant is the idea, the system, the nature of the connection,
and not what is connected (ibid., 688).4 Pitamic perceives a parallel between the
ancient Greek conception, which was free from the constructivist auxiliaries of
modern jurisprudence, and the Pure Theory of Law, which dissolves the eman-
cipation, materialization, and hypostasis of this device, and recognizes it merely as
an auxiliary for the cognitive economy of legal cognition (ibid., 684).
In the following, I will first briefly touch upon one of the starting-points of the
Pure Theory of Law: cognitive economy. It was certainly the question of the basic
norm which divided Kelsen and Pitamic most incisively. Pitamic transcended the
Pure Theory of Law and set out to find a common substantial denominator between
positive and natural law. He sought this common denominator in the nature of law.
However, the conclusion from this is not that Kelsens and Pitamics conceptions
are irreconcilable. Their views certainly differ, but they can complement each other
if linked in an appropriate way. The core contribution of the Pure Theory of Law
is that it erects a formal legal frame (structure), allowing substantial creativity
within it.

2. The Quest for a Basic Legal Norm (the Starting Point of the Pure
Theory of Law)
2.1. Cognitive Economy as a Precondition of Legal Science
Law understood as a system of norms would be utopian without some foundation.5
Kelsen (1914) and his circle (see especially Verdross 1915, 112, 1213, and 1347)
were searching for this foundation (see Walter 1992, 4759; 1993, 8599; see also
Paulson 1993, 5374).

4
See also Verdross 1963, 44. Cf. Kelsen 1922/23. Quoted from the reprint in Klecatsky et al.
1968, I, 180.
5
Cf. the earlier Jellinek 1913, 28.

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178 Marijan Pavcnik

In 1917, Pitamic published the article Denkkonomische Voraussetzungen der

Rechtswissenschaft (Cognitive Economy as a Precondition of Legal Science), which
played a key role in this quest. Pitamic was particularly interested in the question
of whether and how Kelsens purity could be justified. He advocated the scientific
principle that an investigation of the process of normative deduction must take into
account the development of events as it occurs according to another (causal)
method. As he himself states (Pitamic 1917, 366; see also Pitamic 1934, 414):

In this choice concerning past as well as present law, a certain principle of economy has to
be considered; this principle does not consider the subjective political conviction in any way
and amounts to nothing more than objectively establishing the material conditions for
constructing such legal norms that will conform in the highest possible manner with
effective preconditions for what ought to be done, i.e., with those ideas about what ought
to be done that really motivate the people in the territory and time period whose law we
want to know.

Regarding the nature of this principle, he quotes the philosopher and physicist
Ernst Mach: This tendency to obtain a survey of a given province with the least
expenditure of thought, and to represent its facts with one single mental process,
may be justly termed an economical one (Mach 1882, 302; see also Mach 1905,
232).
Pitamic proposed methodological clarity in legal theory, without altogether reduc-
ing the object law as a priori to its normativity, and without completely divesting the
concept of all its non-normative elements. Pitamic sharply distinguishes between
the deductive-normative and the inductive-causal methods. The first only provides
a way of thinking which enables us to identify without contradiction the norms
of a given legal material in their relations to one another, as well as to apply them
in the face of factual events (Pitamic 1917, 3656). The core of this method is
normative imputation (Zurechnung), which is nothing but the conjunction of
normative constituent elements with relevant factual elements on the basis of a
norm (ibid., 342). It is a characteristic feature that a user of the deductive-
normative method presupposes the starting point of his research, whereas the
starting point itself (i.e., legal material as the object of research) can only be defined
by the inductive-causal method. The latter looks for a concrete starting point, i.e.,
such legal order that can be found in its concrete contents determined by time and
place (ibid., 344).
This methodological dualism, which legal science is unable to avoid, is illustrated
by Pitamic in a metaphorical way:

When Kelsen starts from a standpoint he presupposes as a givena complex of norms, and
from this formal condition (which permits any contents) derives consequences in a purely
deductive manner, he is, so to speak, on the top of a mountain from which he descends
normatively fighting his way down; yet Kelsen does not ask himself how to reach the top.
Others who try first to achieve the material conditions, the starting point of the norms, look
first for the top of a certain mountain; they fight their way to it, which is only possible by the
method of induction and causality because this means [. . .] establishing the psychological
effects of ideas about ought (Sollen), which belong to the area of the knowledge of is
(Sein). (ibid.)

Pitamic convincingly explains that in a series of ideas produced according to a

certain method one can never escape from an infinite series unless one commands

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 Methodological Clarity or the Substantial Purity of Law? 179

a halt by means of ideas produced according to another method (ibid., 355). Pitamic
calls this a jump (emphasis added) over an abyss, whose endless depth logically
separates the world of is (Sein) from the world of ought (Sollen) (ibid., 356). In
short: It is an unsolved, possibly even an insoluble epistemological problem that
can be bridged by mans value jump (the word value added by me) in such a
way that the normatively running deduction is interrupted by the fact of is
(Seinstatsache) (ibid.).

2.2. The Object and the Method of Enquiry

The central question revolves around the relation between the object and the
method, or between the method and the object of enquiry (cf., especially, Winkler
1990, 175ff). For Pitamic, Kelsens standpoint that a specific method determines a
specific object (Kelsen 1922, 106) is unacceptable, and he dismisses it with the
moderated counter-statement that a specific object also shapes the specific method
which is to be used in its exploration. Pitamic expressly states that something
must be decisive for the choice of the method (Pitamic 1922a, 535). The fact that
the deductive-normative method is used means that the norm already exists. The
object to be researched somehow offers itself to the researcher and he is not the one
creating this object (ibid.).
For Pitamic, the use of the inductive-causal method is justified and completely
legitimate. Kelsen and Weyr were of a different opinion and objected to Pitamic
that the use of the inductive-causal method implies a complete denaturation of legal
cognition (Kelsen 19151916, 258; see also Weyr 1916, 346). Pitamics research
illustrates that the inductive-causal method is generally necessary when the nor-
mative world of the law [i.e., law as an ought (Sollen)] depends and is based on
correspondent acts of being (Seinstatsachen) and is founded on them.
In this sense, the dispute over the method is an entirely sterile dispute (emphasis
added) already because it fails to distinguish between the starting points of the
enquiry and the normative (legal) enquiry itself (Pitamic 1917, 354). The key
question is not whether the additional application of the inductive-causal method
is allowed, but whether the two methods are confounded (ibid., 367). The goal
is methodological clarity and purity, not a purity of the object, which could only be
attained by using the deductive-normative method. Banishing the inductive-causal
method would be to ignore, at least to a certain extent, the whole of temporally and
spatially given law.

2.3. Kelsens Reaction

Kelsen partly took Pitamics criticism into account.6 After all, he took it for granted
that we can only speak of positive law when its norms are, at least on average,
effective in society, and tried to find an adequate theoretical solution. By the time
of the publication of Pitamics Denkkonomische Voraussetzungen der Rechtswissen-
schaft, Kelsen had not been successful in defining such a solution which would
remain within the boundaries of the Pure Theory of Law. Kelsen had addressed the

6
Kelsen 1923, XV. Four articles by Pitamic are quoted in the cited work: See note 2.

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180 Marijan Pavcnik

problem of the basic norm (Walter 1992, 49). In his article Reichsgesetz und
Landesgesetz nach sterreichischer Verfassung (Imperial Law and State Law According
to the Austrian Constitution), he explicitly states that any legal construction must
presuppose certain norms as valid legal rules (Kelsen 1914, 216). It is typical for
Kelsen that the choice of this starting point is understood not as a legal question,
but as a political one, and therefore must always seem arbitrary from the perspec-
tive of legal understanding (ibid.; see also 4134).
Pitamic is convinced that Kelsen took up his idea about the effectiveness of law
and expressed it in an altered normativized form: first through the norm of
international law and then as the content of the basic norm. Pitamic says that
Kelsen supplemented the mentioned idea because he entered into international
law as a norm that which I suggested as just a cognitive principle for concrete (state)
laws (Pitamic 1921a, 18).7 Kelsens epistemological principle became the content
of a legal norm and is therefore supposed to function as a legal principle. By
becoming the content of a norm, Kelsen writes, the factual undergoes a very
peculiar change in meaning, it is in a way denaturised, it makes a volte-face and
becomes normative itself (see Kelsen 1920, 99, and 2401). Pitamic (1921a, 18; see
also 1922a, 351) is not satisfied with this solution, because in this way the basic
epistemological problem [. . .] is only posed back and must appear again in
international law.
He expresses the same concerns with regard to the basic norm as it is formulated
by Kelsen in the first edition of Pure Theory of Law (1934, 65ff.).
The development of Kelsens theoretical standpoints confirms the accuracy of
Pitamics statements that Kelsen (to a certain extent8) accepted his critical remarks
about how to substantiate the effectiveness of law so as to make it acceptable and
compatible with the Pure Theory of Law. Irrespective of the intensity of this
influence upon Kelsen,9 it is a fact that Kelsen did not deepen it at the point where
the normative and the factual, the factual and the normative intersect (see Pitamic
1928, 642) and depend on each other (and are also mutually connected), but
accepted and channelled it in such a way that the starting points of the Pure Theory
of Law remained unaffected.10

3. Back to the Nature of Law

Pitamic increasingly committed himself to the conclusion that law is not and cannot
be merely a social technique (Kelsen 1934, 28), because its technique has to be social
in order to be legal (Pitamic 1941, 188). He was not interested in law merely as a
fleshed-out and fine-tuned normative technique, but saw in it a socially effective
legal order, which assumes the character of law when it protects human external
behaviour in general and human rights in particular (humanity as a measure of
legality). However, the preconditions of positive law are not only

7
Cf. also his review (Pitamic 1928, 6412) of the works of Kelsen.
8
This problem is also treated in the comprehensive letter which Pitamic sent to Kelsen in
August 1957: See Pavcnik 2010, 87103.
9
Cf. Pitamic 1960, 210; see also Behrend 1977, 73ff., 94, and Thienel 1991, 1178.
10
Cf. Kelsens formulations of the basic norm in his later works; see especially Kelsen 1945,
1167; Kelsen 1960, 209, and Kelsen 1979, 203ff.

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 Methodological Clarity or the Substantial Purity of Law? 181

situated outside of it, but are also a different, heterogeneous (emphasis added)
system reaching into the legal system, vitalizing it, and supporting its interpre-
tations of legal norms. The dependence of law on this different, heterogeneous
system is most delicate and also most sensitive and also evident in the interpre-
tation of the constitution, which is at the top of the hierarchy of state law (Pitamic
1920, 14; see also 18.).
The descent to law and its nature shows Pitamic that the main elements thereof
are order and humane behaviour. For him order is so essential that it is no longer
law when it ceases to be order. When the norms of a legal order are no longer
carried out permanently, they do not serve the order in the community for which
they are intended; then disorder rules, a lawless state, or another legal order has
started to work (Pitamic 1956, 192).
Yet the order that is of such importance for law is not some order emptied of
content, but an order regulating the behaviour of men. This regulation must
consider its object to at least such an extent that it does not take away its content.
If law is to remain law, it may only command or permit humane external behaviour
and not its opposite, inhumane behaviour, if it does not want to lose the qualities
of law (Pitamic 1956, 194; cf. also Verdross 1963, 296).
The order ensured by law loses the nature of law if its inhumanity exceeds the
extent that still allows for the existence of an individual and humane coexistence.
This is the minimum content of law determined in a most general way and
acceptable by anyone accepting humanity as a value.

4. Methodological Clarity instead of Substantial Purity of Law

4.1. Freedom of Scientific Enquiry and the Arbitrariness of the Content of Law
The choice of the method and the nature of the investigation of the object are also
a matter of the freedom of scientific research. It is in the nature of the freedom of
research to seek and to open up new aspects and nuances which are not available
yet and which will contribute to legal understanding. Kelsens purely normative
understanding of law (the pure normativity thesis) is a creative example of this
scientific quest (see also Paulson 2006a, 52936, especially 534ff). The quest is
creative as long as it is in keeping with law and its nature.
Kelsens understanding of law is purified to such an extent that it is left with
nothing but the formal structure of law as a social reality. Law is a pattern of norms
embracing humanity (i.e., society) in a web shaped like a pyramid, and displaying
their possibilities of action. Kelsens approach depends on support in the form of
facts (i.e., social relations) or values, which are the touchstone for the creation as
well as for the understanding of legal contents.
The objection which charges Kelsen with consenting to any content returns like
a boomerang (see Philipps 2007, 1956). The right question is not whether a grosso
modo effective legal system could have arbitrary content according to the Pure
Theory of Law. The right question is whether a system of norms whose content is
arbitrary can actually be law. A system of norms which relies only on power and
tramples human rights underfoot cannot be law. The very condition for positive
law to function is the legitimacy of its content. Hart, for example, is moving in this
direction by admitting that positive law has to include at least a minimum content
of natural law (Hart 1994, 193ff.).

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182 Marijan Pavcnik

4.2. The Creative Force of Normative Purism

Pitamics assumption was that the method used in researching law is not inde-
pendent of the object of the enquiry. The object (i.e., the nature of this object, and
thus the nature of law) affects the choice of the method(s) by which legal science
understands law. The article O ideji prava (On the Idea of Law) includes this
interesting passage: As a model should in general be shaped after the object it is
made to represent, law as a form must equally, at least in general, be shaped after
its object. If a model considerably damages the object rather than harmonizes with
it, then it is not a model of this object (Pitamic 1943, 198).
Pitamics language is symbolic. The model referred to is obviously Kelsens
method which creates the purity of the legal content. Pitamic objects that the ideal
of methodological purity overlooks the structure of the legal content, which lends
itself to scientific enquiry. This objection does not imply that a partial understand-
ing of law has no creative force. The strength of a partial approach can lie in a
clearer image of the points of view which are highlighted with equal strength, for
example, by an integrative or integral (synthetic) understanding of law. On the
other hand, however, we also face the substantial danger that a partial approach
might exaggerate one aspect of the law, or even distort it in comparison with other
aspects.
Kelsens normative purism has a creative effect wherever it unveils a problem
area which deserves attention. Kelsen reveals the problem, but his theory does not
provide the means required to genuinely tackle it. Especially distinctive revelations
of this kind in Kelsens work can be found, inter alia, in his comparison of laws of
nature (Naturgesetz) with positive laws (Rechtsgesetz), in his discussion of the legal
subjects, gaps in the law, the interpretation of legal acts (combined with the
hierarchical structure of the legal system), and the nature of international law. Due
to space constraints, we can here only address the questions of the legal gap and
of the interpretation of laws.
A legal gap is not a gap in the law but a typical ideological formula; thinking
about it, we realize that in the case of such a so-called gap, the application of the
law in force is not impossible, but only ideologically inappropriate for the
defender of the gap (Kelsen 1934, 106. See also Kelsen 1945, 146ff.; 1960, 251ff).
Kelsen is inexorable: Every legal dispute consists in one party making a claim
against another party, and the decision granting or rejecting the claim depends on
whether or not the statutethat is, a valid norm to be applied in the concrete
caseestablishes the claimed legal obligation (Kelsen 1934, 100).11 We find our-
selves in an area which is highly susceptible to human freedom; we have to be
aware that the so-called legal gap is thus nothing but the difference between
positive law and a system held to be better, more just, more nearly right (ibid.,
1012).12
Next: The interpretation of the law is equally not supposed to determine which
meaning of a law is its true meaning. It is not possible by scientific means to

11
The English quotation is taken from Kelsen 1992, 84.
12
See also Kelsen 1945, 146ff., and 1960, 251ff. The English quotation is taken from Kelsen
1992, 85.

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 Methodological Clarity or the Substantial Purity of Law? 183

develop a method for filling in the discovered frame correctly (ibid., 95).13 Kelsen
explicitly underlines that the norm only constitutes a frame within which various
possibilities for application are given (ibid., 94f.).14 If additionally we combine
these findings with the hierarchical structure of the legal order (Stufenbau der
Rechtsordnung), we discover that both interpreting and applying legal acts (e.g.,
laws) are creative acts; science cannot answer the question which direction we have
to take, but it can expose the uncritical ideology upholding the notion that we are
merely dealing with the mechanical application of laws.
The productivity I am speaking of is only possible if the form of the law is
harmonised with its content. A case in point of a divergence between form and
content is Kelsens conception of the legal norm. The social-teleological purpose of
legal norms is to strengthen and guide the external behaviour and conduct of legal
subjects. Their primary aim is the implementation of permissions, commands, and
prohibitions; a sanction, as their secondary aim, only comes in when a breach of the
law occurs. As already expressed by Modestinus in the Digest of Justinian, 1, 3, 7:
The capacity of law is thus: to command, to prohibit, to allow, to punish (Legis
virtus haec est: imperare, vetare, permittere, punire). Kelsen departed from this simple
truth. What he treated as primary legal norms in Pure Theory of Law are norms of
sanctioning (Sanktionsnormen), which are particularly characteristic of criminal law
and in general of norms immediately relating to breaches of the law. Norms of
conduct (Verhaltensnormen), stating what we are entitled to do, what is prescribed,
and what is prohibited, were only secondary legal norms. For Kelsen, they were
norms specifying how people had to behave in order to avoid the threatened
coercive act (Kelsen 1934, 30).15 In the posthumously published work Allgemeine
Theorie der Normen (General Theory of Norms), he amended his view and returned
to the point from which he should have started. The main capacities of legal norms
are their possibilities to command, prohibit, allow, authorisei.e., authorise the
implementation or application of the norms , derogate existing norms, and replace
them with new ones (Kelsen 1979, 76ff.). Finally, these possibilities of action again
become the content of primary norms, while the norms prescribing sanctions are
referred to as secondary norms (ibid., 115).

4.3. Kelsen, Pitamic, and Radbruch

The question of normative justification is the thread which links Kelsen and
Pitamic, even if their points of view were different. To briefly repeat, Kelsen
supported the methodologically pure approach, which creates a pure object of
enquiry. Its methodological purity is so pronounced that the object of enquiry does
not influence the method. The contrary applies: The object interrogated by science
depends on the method and its scientific orientation (see pars. 2.1, 2.2.). Pitamic,
from the very beginning, struck out on a new path: He was convinced that law
could not be understood and explored by a single method aiming at a pure object
of enquiry. He argued that it is necessary to employ other methods besides the

13
The English quotation is taken from Kelsen 1992, 81.
14
See also Kelsen 1960, 347ff. The English quotation is taken from Kelsen 1992, 80.
15
The English quotation is taken from Kelsen 1992, 29. See also the critique which Peter
Koller (1988, 13647) addresses to Kelsen.

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184 Marijan Pavcnik

normative method (especially the sociological and the axiological methods), which,
however, should not be confounded. Methodological syncretism can be avoided by
distinguishing clearly between different aspects of law and by allowing the
methods to support each other.
Step by step, these results prompted Pitamic to combine the positive-law and the
natural-law-conception of the nature of law. For Pitamic, to sum up once again, the
essential elements of law are order and human behaviour. These elements are
interdependent. The order is associated with legal norms regulating external
human behaviour. It is so essential that law ceases to be law when its norms cease
to be at least grosso modo effective (Pitamic 1956, 1923). However, not any order can
function as an element of law; the condition is that it is an order which prescribes
only external humane behaviour and does not prescribe or allow its contrary,
inhumane behaviour, otherwise it loses its legal quality (ibid., 194).
However, the legal norm ceases to be law when its content seriously threatens
the existence and social interaction of the people subject to it (ibid., 199). For this
it is not sufficient that there is some kind of inhumanity in the content of the legal
norm (e.g., high taxes which are unjust); there has to be a conspicuous, obvious,
severe case of inhumanity [such as the mass slaughter of helpless people (Pitamic
1960, 214)]. There has to be a crude disturbance (for instance, the extermination
of the members of another race) which interferes so intensely with law that its
nature is negated (Pitamic 1956, 199; see also Pitamic 1960, 215).
Ulfrid Neumann convincingly observes that Pitamic does not invoke ethical
criteria beyond law, but appeals to elements of the legal concept itself (Neumann
2011, 281). This form of justification is to some extent in accordance with Radbruch
and his formula. The similarities between Radbruch and Pitamic consist predomi-
nantly in the fact that their projects both aim at the justification of the legal concept,
and that they both, in a similar way, explore the boundary which may not be
transgressed by a conflict between single elements of law in order to remain within
lawfulness. The Rubicon is crossed once the order is blatantly inhumane (krass
unmenschlich). We are here faced with an obvious parallel to Radbruchs formula
of intolerability (Unertrglichkeitsformel).16
It cannot be concluded from Pitamics oeuvre that he drew on Radbruchs
theories. In An den Grenzen der Reinen Rechtslehre (2005), Radbruchs name is only
mentioned once in association with heteronomous obligations (Pitamic 1918, 750).
In Pitamics central book, Drava (The State, 1927), Radbruch is not quoted at all.
The majority of reasons for their affinity lie in the fact that Radbruch and Pitamic
underwent a similar development, which ultimately led to similar results.
Radbruch as a Neo-Kantian endorsed value-theoretical relativism and held the
view that legal values cannot be identified (erkennen) but only acknowledged
(bekennen).17 Given the fact that the supreme value of law cannot be known, it is
necessary, for the sake of legal security, that this content be defined by the state
authority (Radbruch 1973, 1645). His experiences under Nazism motivated
Radbruch to make his points of view complete, and partly also to complement
them in the light of the condition of legal values. This was done after the Second

16
See Neumann 2011, 281.
17
Radbruch 1914; quoted from the reprint in Radbruch 1993, 22, 162. The English quotation
is taken from Paulson 2006b, 31. See also Radbruch 1973, 96; 1934.

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 Methodological Clarity or the Substantial Purity of Law? 185

World War. The definitive derivation states that when the conflict between positive
statute and justice reaches an intolerable degree, the statute as flawed law
(unrichtiges Recht) must yield to justice (the formula of intolerability). Besides this
formula, there is also the formula of deniability (Verleugnungsformel); this formula
applies when the law deliberately betrays equality. In this case, the law is not
merely flawed law, it completely lacks the very nature of law.18
Pitamics development was similar. He first encountered theory and philosophy
of law as Kelsens disciple and was impassioned by normative purism as a form.
He was not deeply affected by the sharp distinction between the is (Sein) and the
ought (Sollen), as he also contemplated law sociologically and axiologically. From
the very beginning, he was perturbed by the self-sufficiency of law as a normative
system. In the face of the assertion that an ought can only be derived from an
ought, he advanced the thesis, inspired by Aristotle, that man is by his very nature
implanted into normative relations (see Pitamic 1960, 212; see also Pavcnik 2010,
934). His experiences with the barbarism of the twentieth century certainly had an
influence on Pitamic, who, just like Radbruch, placed law in relation to values.
Radbruch argues that law strives for justice, while Pitamic seeks the solution in a
concept of law which also has to be humane. Radbruchs formula is articulated
more thoroughly than Pitamics legal concept. However, Pitamic can also be
understood as saying that conscious disavowal of equality is inhumane, and that
an inequality which is intolerably inhumane lacks legal character.
An exhaustive comparison of Radbruch and Pitamic is not the object of this
enquiry. Yet a comparison was necessary because it highlighted a parallel with
Kelsens normativity thesis. Kelsen stuck to this thesis until the very end and thus,
from the point of view of his theory, he was indifferent to the content of positive
law. This content simply was not an object of his formal, normative analysis of law.
Radbruch and Pitamic included the content into their arguments and, in their
respective way, made it a yardstick for their concepts of law. This enabled them to
posit that their respective investigative methods were outside of natural law and
legal positivism. More precisely, in the words of Alexy (2009, 15166; 2010, 16782;
see also Koller 2006, 18096; 2008, 15780), their investigative methods can be
described as dual. This means that, again both in their own way, they combine the
factual and the ideal side in their investigations. The factual side encompasses the
positive legal order and the effectiveness of this order, while the ideal side
addresses the (moral) adequacy of its content. Their common denominator is that
law only remains law as long as its content is not extremely unjust or extremely
inhumane.
The discovery that the nature of law is dual also opens up the possibility of a
dialoguein such a manner as by Koller as wellbetween all those who are not
radical positivists or moralists (see Koller 2008, 160ff., 175ff.). Radical positivists
accept any imaginable content of law, while radical moralists grant only a law
which conforms to their moral ideal. The Pure Theory of Law is not an example of
radical positivism; it only assumes arbitrariness (Beliebigkeit) of content in order to

18
Radbruch 1946. Quoted from the reprint in Radbruch 1973, 3456. The English quotation
is taken from Paulson 2006b, 26. For more on Radbruch and Radbruchs Formula, see, e.g.,
Alexy 1992, 52 ff.; Dreier and Paulson 1999; Radbruch 1999; Kaufmann 1987, 988; Saliger
1995; Sprenger 1997, 37. See also Dreier 1997, 193215.

Ratio Juris, Vol. 27, No. 2 2014 The Author. Ratio Juris 2014 John Wiley & Sons Ltd.
186 Marijan Pavcnik

make possible an analysis of law irrespective of its content. Kelsens thesis of

normativity is dialogical for all those interested in the content of a normative legal
structure. Kelsens theory (and especially the theory of the hierarchical structure of
the legal order) reveals (even provokingly, in its own way) where the questions
about the legal content are situated.
Kelsen, at least in a certain sense, refused to accept this dialogue, because for him
law was only a closed system of legal norms. Kelsens thesis was that a relation is
only possible between elements of one and the same system.19 The one-sidedness
of Kelsens approach is illustrated very aptly by the already mentioned mountain
allegory.
Pitamic contributed to the improvement of the contents of the Pure Theory of
Law. The key argument is that the methods used in investigating and understand-
ing law have to be in accordance with the nature of law. The understanding of the
nature of law is a peculiar prior knowledge guiding the scholar in his choice of the
method with which he approaches his field of study. By following this guideline,
and by arguing according to a clear method, we can also open up a space for
dialogue and for the juxtaposition of contrasting points of view. Then, according
to Pitamic, we can approach the aim which we have to strive for by allwith the
best intentions allmeans: cognition (Pitamic 1917, 367).
Pitamics enquiries have illustrated that even the purest theory of law cannot
confine itself to the subject of law as a normative construction. If we want this
construction to be active and legally effectual, it has to rely on facts of being, and
it also has to make possible, in accordance with its content, the existence of the
individual, as well as living together. This is naturally a very loose framework to
be imposed on law, but it is nevertheless a framework which clearly pronounces
itself regarding the direction law is to have. This direction is embraced by all those
who are interested in law as a living phenomenon.

University of Ljubljana
Faculty of Law
Poljanski nasip 2
1000 Ljubljana, Slovenia
Email: Marijan.Pavcnik@pf.uni-lj.si

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Ratio Juris, Vol. 27, No. 2 2014 The Author. Ratio Juris 2014 John Wiley & Sons Ltd.