Kelsen and Justice

Hans Kelsen, one of the leading proponents of legal positivism, argues in his work “What is Justice?” that there is no objective, universally valid definition of justice. For Kelsen, justice is an irrational ideal, heavily influenced by subjective values and cultural contexts. From this perspective, it follows that there can be no unified, universally applicable justice—and therefore it cannot serve as a reliable standard for legal science.

Kelsen illustrates this argument with several examples that highlight the relativity and contradictions of justice ideals:

• Freedom vs. Social Security: Kelsen asks whether a society offering equal social security to all its members is just if it does so at the expense of individual freedom. The answer depends on which ideal is valued higher. Thus, there is no objective criterion to decide which concept of justice takes precedence.
• Conflict between Principles of Justice: He shows that principles such as equality, merit-based justice, and need-based justice can contradict one another. Equality demands uniform treatment, while merit-based justice calls for differentiated treatment based on performance. Determining which is “just” ultimately comes down to subjective preference.

Kelsen concludes that justice is neither an objectively ascertainable nor a rationally justifiable concept. Evaluating laws based on their justice is therefore not the task of legal science. Instead, legal science should focus solely on analyzing and structuring positive legal systems.

This forms the core of Kelsen’s Pure Theory of Law, which seeks to cleanse law of moral, religious, or metaphysical elements and perceive it as a value-neutral system of norms. The central assumption: A law is valid because it is anchored within a specific hierarchy of norms—not because it is just.

Kelsen was fully aware of the dangers posed by such a legal understanding being used to justify immoral or criminal legal systems. Nonetheless, he maintained that moral evaluation lies outside the methodological framework of legal science.

This stance remains controversial to this day. Critics perceive radical legal positivism as a theoretical basis for the major state crimes of the 20th century, as it separates obedience to the law from moral reflection.