The Drive towards Substance in Kelsen’s Pure Theory of Law

On my interpretation of Kelsen’s ‘pure’ theory of law, his basic norm must be understood as a regulative assumption, a claim about inquiry and what individuals must assume if their inquiry is into the authority of law. As such, this idea has both theoretical and practical dimensions. As a matter of theory, it requires an elaboration of authority as legitimate and attention to the way in which the relationship between those who wield authority and those subject to it can be said to be one of right rather than might. As a matter of practice, it requires attention to the way in which, in light of legal subjects’ experience of law, legal order is and should be designed with a view to vindicating its intrinsic commitment to the rule of law and its concomitant commitment to constitutionalism. However, all that cannot be had without acknowledging the drive towards substance in Kelsen’s theory, one that sacrifices its claim to be pure of ideology in the sense of political value commitments. But it preserves purity in an account in exclusively legal terms of how politics can take place in a space constructed by law, internationally as well as domestically.