Felix Kaufmann, Juristischer und soziologischer Rechtsbegriff (1931)

Felix Kaufmann’s edited-volume essay examines the epistemological foundations of Kelsen’s Pure Theory of Law and reconstructs the relationship between juristic and sociological concepts of law. Its central claim is that their methodological distinction remains indispensable, but cannot rest on an ultimate opposition between being and ought. Kaufmann seeks to preserve Kelsen’s achievements while removing their remaining speculative foundations. The argument proceeds from conceptual clarification through a critique of normativity to an account of legal determination within social processes.

“Purity” of method means isolating distinct questions, not prescribing a new empirical research technique. Asking what law essentially is therefore requires clarifying what one means when identifying a proposition as law. Different meanings must first be distinguished and then related: only understanding their connection fully justifies their separation. Kaufmann compares this work with Husserl’s isolation of pure logic from psychologism. His concern is not merely terminology, but the conceptual confusions expressed in terminology.

The first substantive distinction concerns a legal proposition’s content and its membership in a particular legal order. Membership cannot generally be established by deducing legislation from constitutional provisions: the latter do not logically contain the former’s detailed contents. Instead, validity depends on circumstances of enactment, including the identity of the issuer and the prescribed form. Kaufmann illustrates delegation through a father directing his child to obey the mother, who directs the child to obey an aunt. Fulfilling the aunt’s instruction indirectly fulfills the father’s, but only knowledge of who issued the instructions establishes that connection.

Als Geltungsgrund erscheinen also empirische Fakten, die wir Aktualisierungsfakten der Norminhalte nennen wollen.

English translation: Empirical facts thus appear as the ground of validity; we shall call them facts actualizing the contents of norms.

These social facts belong to the criteria of legal identification. They must nevertheless be distinguished from facts merely associated with law. An apparent infinite regress arises when each authority requires authorization by another authority. Kaufmann diagnoses this as a confusion between describing legal membership and legitimating an obligation to obey. Kelsen’s basic norm makes a decisive advance by establishing a hypothetical framework rather than deriving positive law from moral authority, power, or recognition. It also accommodates conflict-resolution principles and interpretive practices that cannot be reduced to deduction from enacted wording.

Kaufmann nevertheless rejects the basic norm’s characterization as an ought-proposition. Drawing on the connection between meaning and verification, he argues that an intelligible ought relates conduct to a wish, intention, or purpose. Its assertoric content can be restated without normative vocabulary as a claim about appropriate means or relevant circumstances. An absolute ought lacks such content; making it hypothetical does not cure its meaninglessness.

Hieraus ergibt sich nun mit voller Klarheit, daß einer logisch auf sich gestellten, relationsfreien Norm, sei sie nun hypothetisch oder nicht, kein Sinn zukommt und daß daher insbesondere die Idee einer Grundnorm, qua Norm, nicht aufrechterhalten werden kann.

English translation: It now follows with complete clarity that a logically self-standing, relation-free norm, whether hypothetical or not, has no meaning, and that consequently the idea of a basic norm, precisely as a norm, cannot be maintained.

The accompanying philosophical discussion explains why normativity nevertheless appears autonomous. Familiar purposes recede from awareness, while commands carry emotional force and motivate their recipients. Kaufmann distinguishes this motivational function from a statement’s meaning. Similarly, linguistic meaning is intersubjective within a language community, not evidence of a self-sufficient realm of sense or values. His discussion of Husserlian abstraction and mathematics likewise contests the inference from generality or certainty to an independent sphere of ideal objects.

The constructive result is a reinterpretation of the basic norm as the criteria defining membership in a particular legal order.

Man kann auch statt dessen, wenn man nicht an dem Aristotelischen Definitionsbegriff von genus proximum und differentia specifica festhält, sagen, daß die Grundnorm die Definition des Begriffes „Recht einer bestimmten Rechtsordnung“ ist.

English translation: Alternatively, if one does not adhere to the Aristotelian conception of definition through genus proximum and differentia specifica, one can say that the basic norm is the definition of the concept “law of a particular legal order.”

Kaufmann ultimately proposes “criterion of positivity” as the more appropriate name. Individual legal propositions are commands; their systematic connection concerns enactment and indirect compliance, rather than a specifically normative logic. Kelsen’s distinction survives in a restricted but crucial form: obedience alone does not confer legal character, and disobedience alone does not remove it.

The second part locates legal determination within social action. Beginning with Weber’s enforcement staff, Kaufmann traces coercion through chains of motivated command-following. Sociology investigates the causes sustaining these chains; juristic analysis identifies legal membership according to specified criteria. The latter is itself embedded in the process sociology explains, without its standards of correctness becoming identical with its causes or effects. Power and recognition theories become misleading when they substitute explanations of effective motivation for the criteria used to determine law.

The conclusion distinguishes the correctness of an official finding from the legal character of a command based upon it.

Aber die wissenschaftliche Analyse selbst zeigt, daß erwiesene Unrichtigkeit eines Feststellungsergebnisses den darauf basierenden Geboten keineswegs den Rechtscharakter nimmt.

English translation: But scientific analysis itself shows that the demonstrated incorrectness of a finding by no means deprives the commands based upon it of their legal character.

Scientific scrutiny can therefore expose an erroneous judgment without negating its legal effects. Conversely, legal science cannot choose its organizing criteria arbitrarily: they must clarify the socially established practice they reconstruct. The essay’s significance lies in this double movement—preserving methodological differentiation while rejecting an ontological gulf between law and social reality.