Constitutionalism and Value-Free Method: Kelsen’s Legacy in Contemporary Challenges

Abstract

The challenge of constitutionalization arises, first of all, from the positivization of moral principles in law, elaborated by an Enlightened rational jusnaturalism. From its inception, according to some ethical perspectives, a crisis of the artificial character of the law occurs with a concomitant dissolution of the Kelsenian legal science of positive law, whose formal paradigm is rigidly centered on procedures of authorization and competence. To this outmoded Kelsenian model are opposed theories of moral justification that invoke forms of foundational rationality and, thereby, shift the focus and emphasis from dynamic-voluntarist to static elements. It is believed that the Constitution has filled up the ‘legal space’, redrawing within the boundaries of the law the classic dialectical tension of natural law/positive law, and circumscribing, through the requirement of justification, the previously irreducible Kelsenian space of interpretative discretion. However, is constitutionalization the irreversible crisis of legal positivism and the abandonment of the methodological disenchantment of Kelsen legal science? In this chapter, the predominant conception of constitutionalization is placed into question by analyzing different strategies for the composition of legal agreements, and reemphasizing the indispensability of some central aspects of the Kelsenian tradition. The attempts to refound forms of moral objectivity, situated between procedural strategies and comprehensive ethics, contain the underlying risk of a moralization of law: a risk which can only reinforce the disorientation of contemporary jurisprudence through its preceding rejection of a disenchanted and sober reaffirmation of the rationale of legal positivism. Only the latter is able to understand the tension between law and the multiplicity of ethical viewpoints existing in our fragmented, contemporary societies, without claiming to lead them back to a universal moral point of view with a transcendental foundation.