Felix Kaufmann, Staatslehre als theoretische Wissenschaft (1926)

Felix Kaufmann’s review essay presents Hans Kelsen’s Allgemeine Staatslehre (1925) as a decisive advance toward a genuinely theoretical science of the state. Its argument moves from the methodological separation of knowledge and valuation, through a defence of Kelsen’s identification of state and law, to an account of the book’s three-part structure. Kaufmann’s central claim is that political theory gains scientific coherence by abandoning attempts to establish political preferences as truths of reason or nature. Kelsen’s achievement consequently matters beyond jurisprudence: it demonstrates how an ideologically contested field can acquire an internally consistent theoretical organization.

Kaufmann begins with the emancipation of scientific inquiry from its practical origins. The connections among truths that constitute a science differ from the orientation of someone seeking guidance about what to pursue or avoid. Social sciences are particularly vulnerable to confusing these purposes, since researchers readily present conduct favoured by themselves or their social class as intrinsically valuable. Historical theories of the state and natural law exemplify this confusion. Their defect is not that they originate in political commitments, but that they incorporate disputed practical demands as absolutely valid conclusions.

Even an ethics constructed geometrically would establish only the dependence of conclusions on assumed principles, not the unconditional validity of those principles. Modern mathematics supplies Kaufmann’s methodological comparison: rigorous deduction does not eliminate the hypothetical character of a system’s foundations. A second restriction prevents factual explanations from becoming proofs of value:

Es folgt also niemals ein Wert aus einem Sein und — dieser Satz gilt auch umgekehrt — niemals ein Sein aus einem Wert.

English translation: Thus a value never follows from a being and—this proposition also holds conversely—a being never follows from a value.

The converse matters because Kaufmann rejects both the derivation of obligations from facts and the inference of existence from valuation. He connects their historical entanglement with mythic personification, Platonic-Aristotelian philosophy, and religiously grounded systems of absolute norms. His aim is nevertheless not to prohibit inquiry into values. Science can expose logical contradictions and what he calls axiological inconsistencies, provided it does not pretend to prove ultimate commitments.

Axiological consistency concerns values assigned to outcomes and to the causal means of achieving them. The value of an end does not logically entail the value of its means; nevertheless, a practically usable normative order must permit some means capable of realizing its approved ends. This distinction explains the legitimate substance of many political discussions without turning their continuing value decisions into theoretical conclusions.

Kelsen becomes exemplary because his separation of normative and explanatory inquiry clears away methodological confusions. Kaufmann expressly cautions that the identity of law and state is not logically deducible from the separation of being and ought. Rather, that separation opens the way to recognizing the state’s juridical character:

Das Ergebnis Kelsens haben wir bereits vorweggenommen: Staat und Recht, Staatslehre und Staatsrechtslehre sind wesensgleich.

English translation: We have already anticipated Kelsen’s conclusion: state and law, theory of the state and theory of constitutional law are identical in essence.

Kaufmann addresses the objection that people experience the state as an effective social reality, not as a system of norms. Such reality, he argues, consists of relationships intelligible through particular norms and often sustained by their conscious observance. One might therefore define the state either as the legal order or as the events interpreted as compliance with it. For the questions of state theory, this alternative is not decisive: inquiry into what is obeyed returns to the norms and their content. The argument defends Kelsen against the charge of merely substituting an arbitrary technical definition for the familiar state.

The review then follows Kelsen’s three books: the nature of the state, the validity of its order, and the production of that order. The first determines the object of inquiry through criticism of inherited theories and distinguishes state theory from sociology and politics. The second reconstructs the conventional “elements” of state power, territory, and population as juridical problems. Sovereignty becomes a question of relations among normative orders, including federal and international relations; territory and population become spatial and personal dimensions of validity, alongside its temporal dimension. Kaufmann particularly praises the resulting clarification of centralization, decentralization, and associations of states.

The third book explains how a plurality of norms constitutes one legal order:

Kelsen erkennt es in einer als hypothetisch anzusetzenden Grundnorm, die das Grundschema der „stufenförmigen“ Rechtserzeugung bestimmt.

English translation: Kelsen locates it in a basic norm to be posited hypothetically, which determines the fundamental schema of the “hierarchical” production of law.

Here the unifying principle is a chain of authorized norm-production. Constitution, statute, regulation, judgment, and enforcement decision belong together through delegation: one norm is valid on the basis of another. Kaufmann credits Adolf Merkl especially for this insight. It enables precise treatment of the separation of powers and of state organs, including their powers of review and decision. Forms of state are correspondingly understood as different methods of producing the legal order. Political and legislative questions remain relevant, but Kelsen keeps them distinguishable from theoretical analysis.

The essay closes by recommending the work to philosophers as well as jurists. Its significance lies in securing the autonomy of cognition within a field unusually exposed to political controversy:

Damit ist eine wichtige Wissenssphäre in die theoretisch korrekte Form gebracht und ein Beispiel gegeben, das auf die Methode der anderen Sozialwissenschaften nicht ohne Einfluß bleiben kann.

English translation: An important sphere of knowledge has thereby been given a theoretically correct form, and an example has been provided that cannot fail to influence the method of the other social sciences.

Kaufmann’s endorsement thus rests on more than agreement with particular legal doctrines. Kelsen supplies a model of conceptual discipline: normative validity is distinguished from causal occurrence, the unity of law is reconstructed through authorization, and political demands cease to masquerade as necessary properties of the state.