Part I: Kelsen

Unfortunately the theory of Kelsen will offer little in the way of practical contribution toward the resolution of the crisis of legitimacy described in the second and third sections of the thesis. However because of his dominant influence on the European continent, and also because of the possibility that Kelsen might inspire a more rigorous methodology or new and unforseen solutions to the problems to be described, Kelsen does merit study - and critique.

A. Kelsen's theory is founded upon an epistemological inconsistency

1. Kelsen's position can be described as 'objectivist' regarding statements of truth and falsehood

Despite a sceptical critique of the existence of truth, presented by Nietzsche, Gödels theorem of incompleteness, Heisenberg's theory of quantum incertitude, and Quine's theory of linguistic indeterminacy, Kelsen believes that objective truth exists, and can be demonstrated - though whether such truths are constructed or discovered is one of the positions where Kelsen reverses himself.

2. Kelsen's position can be described as 'subjectivist' regarding statements of moral value

Although Kelsen believes that statements of truth and falsehood are objective and verifiable, he does not believe that statements of moral value can be characterised as true or false. That is, Kelsen is a moral relativist.

B. Consequence of Kelsen's epistemological inconsistency

1. Reversals in Kelsen's positions

This epistemological bifurcation, in tandem with a terminological confusion explored below, leads to a variety of contradictions in Kelsen's positions, and explains his reversals regarding the possibility of normative inference, the real or metaphorical existence of a fundamental norm, and constructivism.

2. Terminological Confusion

Aside from these contradictions, this epistemological 'split' explains certain terminological ambiguities: Kelsen's fundamental unit of analysis "the norm" is in fact inadequate. Under the rubrik "norm", Kelsen confounds conditionals (statements in the form of 'if...then') with imperatives. This ambiguity is only partially resolved through the distinction between "legal norm" and "legal statement", for the distinction between legal norm and legal statement is a distinction between the domain of legal science and of law.

The confusion of an order (an imperative statement) and a conditional (a statement in the form of if...then) remains, for the distinction between legal statement and statement of legal science refers to another thing entirely: the epistemological distinction between two different domains of study, and not to the epistemological distinction between two different intentional entities.

C. Conclusion: Kelsen can bring little of value to the resolution of the contemporary crisis in American legal thought. He should however be examined because of his influence on continental thought and also for creative inspiration

1. Kelsen finally describes a variety of metaphores which are in fact pure intellectual construct, mental models, and which for this reason are empty.

Given the self contradictions in Kelsen, it is hardly surprising that he has had little influence upon anglo saxon juridical thought. But, aside from being, in its final version, an empty theory in so far as he describes metaphores, that is intellectual constructs, and thus becomes purely formal, Kelsen's thought is also empty in so far as his theory is descriptive, having no normative content, except for the meta theoretical level (where Kelsen proscribes that his theory of law must be purely descriptive).

2. Kelsen's theory is also empty in that his theory claims to be free of normative content

My criticism of the empty character of the thought of Kelsen is theoretically less strong than my terminological critique, because in his refusal of normativity, Kelsen is at least internally consistent. That is, Kelsen is not self contradictory on his position that his theory of law is to be normatively pure - unlike his reversals on constructivism, normative inference, and the real or metaphorical character of the fundamental norm. But from a practical perspective, the fact that the thought of Kelsen is empty of normative content is fatal; the neutrality of the thoughte of Kelsen prevents us from adapting his ideas to the resolution of the contemporary crisis in american legal thought.

3. Because Kelsen's thought is in fact empty, it can contribute little to the resolution of contemporary American theoretical contention

Legal thought in the US is in a state of contention between several different contenders: principally, law and economics, critical legal studies, and communitarianism. But also critical race theory, feminist legal theory, and law and literature. One could say that the thought of Kelsen breaks through this debate by neutralising all normative theories. Yet this position would have the practical consequence of leaving unresolved the social problems which are the foundation of the theoretical cacophony described above.

If we can not reolve the contemporary crisis in American legal thought via Kelsen, we must examine the roots of the problem, which are found in Adam Smith and Karl Marx. The second section of the thesis will discuss the sources of the theoretical conflict which characterizes contemporary american legal thought and attempt to determine what synthesis, if any, among the competing positions is possible.