A Critique of State and Law in Hans Kelsen’s Thought from Herman Dooyeweerd’s Philosophy

Abstract The aim of this paper is to analyze the theoretical commitments and the legal-political problems of Hans Kelsen’s thought from the perspective of Herman Dooyeweerd’s philosophy. It seeks to answer the following question: Why was the relationship between state and law in Kelsen’s thought unable to protect civil society and individuals from the power of the state? The argument, based on Herman Dooyeweerd’s philosophy, is that Kelsen was trapped in an insurmountable theoretical dialectic or tension between nature and freedom. In pursuit of methodological purity, Kelsen reduced the state and law to the logical aspect and morality to the historical aspect. Analyzing Kelsen’s thought from the point of view of Dooyeweerd’s transcendental critique, this paper demonstrates that Kelsen’s commitments with respect to reality led him to a reductionist theory that rendered society defenseless against the power of the state.