La teoría pura del derecho en contexto: modernidad, positivismo y el pensamiento científico

Abstract

This article examines Hans Kelsen’s Pure Theory of Law as the legal expression of the epistemological values of European modernity. Drawing on the methodology of intellectual history, and specifically on new historicism, it argues that Kelsenian legal positivism is not an isolated phenomenon in the history of legal philosophy, but rather the juridical translation of an impulse shared by the scientific positivism of Mach and Poincaré, the logical positivism of the Vienna Circle, and the neo-Kantianism of the Marburg School: the demand to purge knowledge of all unverifiable metaphysical or ideological content. The article reconstructs the contextual and intellectual links between Kelsen and the Viennese philosophical milieu of the interwar period, analyzes the Grundnorm as a neo-Kantian solution to the tension between normativity and empiricism, and traces the parallel between the crisis of logical positivism—prompted by the critiques of Kuhn, Feyerabend and quantum physics—and the challenges to legal positivism from Hart, Dworkin and the Critical Legal Studies movement. The conclusion holds that, although the limits of the Kelsenian project are structurally analogous to those of the Vienna Circle, its most enduring legacy lies in having formulated with unprecedented precision the terms of the central problem of legal theory: the relationship between law as it is and law as it ought to be.