Felix Kaufmann · 1924
Kaufmann’s work is a methodological foundation for legal science, extending his Logik und Rechtswissenschaft by showing that jurisprudence must be grounded in a general logic of science and a theory of experience. Its central thesis is that legal concepts become intelligible only when the “pure” formal structure of law is separated from empirical, psychological, sociological, ethical, and political accretions.
Reinheit bedeutet Freiheit von Fremdkörpern
English translation: Purity means freedom from foreign elements.
The book’s structure follows this thesis. The general part first develops the logical preconditions of all science: the dualism of factual and essential knowledge, the distinction between act and meaning, and the “principle of compatibility spheres,” by which Kaufmann explains why certain predicates cannot meaningfully belong to certain subject domains. This principle underwrites his distinction between definition and mere empirical indication, between Merkmale and Kennzeichen. The second general section turns to empirical science: experience is not raw givenness but subsumption under concepts; scientific objects are formed either typologically or systematically; and the empirical “application range” of a law must never be confused with its theoretical content.
Jenseits der allgemeinen Methodenlehre gibt es also keine methodologischen Probleme im echten und eigentlichen Sinne.
English translation: Beyond general methodology there are, therefore, no methodological problems in the true and proper sense.
The special part applies these distinctions to law. Against theories that define law by force, recognition, social power, or psychological obedience, Kaufmann insists that these are questions of application, not essence. Law as an object of jurisprudence is not a social condition but a complex of norms.
Recht ist ein Inbegriff sanktionierter Normen über menschliches Verhalten.
English translation: Law is a totality of sanctioned norms concerning human conduct.
The pure legal form is therefore the sanctioned norm, or “double norm”: one norm addresses conduct, another attaches a sanction to non-compliance. Kaufmann formulates the elementary legal sentence as follows:
Eine Person A soll ein Verhalten $V_1$ an den Tag legen, tut sie es nicht, so soll ihr gegenüber ein Verhalten $V_2$ platzgreifen.
English translation: A person A shall exhibit a behavior $V_1$; if he fails to do so, then a behavior $V_2$ shall take place with respect to him.
This move lets him define legal duty, wrongfulness, punishment, and execution without smuggling in empirical notions such as coercion. A sanction is not identified by its psychological effect but by its normative position. Likewise, the basic legal categories—person, conduct, and ought—are not empty logical forms, but materially determined components of legal meaning.
Die Norm ist die Zuerkennung eines Wertes an ein Verhalten; ein Verhalten für wertvoll erklären und es normieren ist eins.
English translation: The norm is the ascription of a value to a behavior; to declare a behavior to be valuable and to make it a norm are one and the same.
Kaufmann’s analyses of the juridical person and subjective right exemplify his method: traditional doctrine mistakes linguistic conveniences and empirical groupings for entities or “substances.” The juridical person is not a mysterious collective being but a structure of imputations, a rule-governed unity through which acts of certain persons count for others.
The later chapters shift from the form of the legal norm to its application and order. Kaufmann distinguishes objective norm-following from subjective norm-following and criticizes Kelsen’s attempt to define the latter by motives such as fear of sanctions. For Kaufmann, subjective obedience to enacted norms consists in conscious fulfillment of a set command, not in the causal psychology of compliance. This leads to his account of statutory meaning: interpretation concerns the objective historical sense of an enacted expression, not the private will or purpose of the legislator.
The theory of legal order is built from delegation and the Grundnorm. A legal order is not a logical system of norm-contents, but a unity constituted by rules that determine which acts of norm-setting count as legally valid. Positivity means that such acts actually occur within an application domain; it does not mean that norms themselves become real things.
was aber gleich bleibt, ist das Kriterium der Zugehörigkeit zur Rechtsordnung, die Grundnorm.
English translation: But what remains constant is the criterion of belonging to the legal order: the basic norm.
The relevance of the work lies in its fusion of Husserlian phenomenology, anti-psychologistic logic, and Kelsenian pure legal theory. Kaufmann radicalizes the demand for methodological purity: legal theory must clarify the criteria by which something is law, without deriving normativity from fact or collapsing value into sociology. This also grounds his rejection of natural law, since value-judgments are not theoretically verifiable. The book closes by preserving the distinction that governs the whole argument:
So sind Wissen und Werten scharf von einander zu unterscheiden.
English translation: Thus, knowing and valuing are to be sharply distinguished from one another.
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