Неокантіанське гносеологічне підґрунтя чистої теорії права Ганса Кельзена

The authors analyze the contribution of neo-Kantian epistemology to the establishment and substantiation of the scientific nature of Hans Kelsen’s pure theory of law and, in particular, its impact on the concept of the fundamental norm. The research is relevant because Kelsen’s theory is insufficiently studied in Ukrainian science and its methodological and epistemological basis needs to be fundamentally analyzed. The article examines Kelsen’s use of the transcendental method developed by I. Kant and interpreted by H. Cohen as the basis of the pure theory of law. Particular attention is paid to analyzing the fundamental norm as an epistemological principle of cognition of law. Its transcendental and logical character and the function of substantiation of the normative order are considered. The author compares the fundamental norm with the Kantian imperatives and substantiates its necessity as a mental assumption, similar to the Cohenian concept of hypotheses makes scientific research of law possible. The distinction between the phenomena of the ontological and deontological types and the impossibility of a logical transition between them underlies the need to introduce the epistemological assumption of the fundamental norm as the highest principle of cognition of the entire system of the order of legal norms. Н. Kelsen adapted the transcendental method used by I. Kant in the field of theoretical reason and justification of the scientific nature of natural science. H. Kelsen used it in the field of practical reason to justify the scientific study of legal norms, separate from the study of other normative systems. The authors emphasize that H. Kelsen analyses legal norms as objects of cognition, and introduces the concept of a fundamental norm as an epistemological assumption necessary for the possibility of cognition of law and explanation of the normative order. Therefore, pure legal theory is a theory of legal knowledge, scientific and empirical in nature, similar to natural sciences, but which studies not natural phenomena but normative senses. This aspect of Kelsen’s pure theory of law in Ukrainian jurisprudence is considered for the first time and its relevance for the modern theoretical and practical dimensions of law is emphasized.