Blackstone's Tower: The English Law School - College of Social ...

The Quest For a Core
rules as aids to prediction and focuses only on judicial decisions,
he will not fare very well. The jungle survivor or street-wise actor
is concerned to predict many other decisions and events, for
example the reporting of a crime, investigation by the police, the
likelihood of suspicion falling on him (whether he did it or not),
the decision to prosecute, the likelihood of a plea bargain and so
on. The bad man has to predict many events and he uses other
aids to prediction in addition to rules. Washing law in cynical acid
may dissolve not only moral biases but also rules, decisions and
"reality" itself. Holmes helped to broaden our perspectives on law,
but he did not provide a coherent theory of law or a workable basis
for its study. 16
Holmes tried to purge the study of law of ethical elements in
order to promote clarity of vision. But he was also concerned to
show the relevance of history, economics, statistics and the social
sciences generally to the understanding of law. Hans Kelsen (1881-
1973), on the other hand, sought to separate legal knowledge
rigidly from both ethics and all the social sciences—indeed from
all other disciplines. Like Holmes, Kelsen insisted on a sharp distinction
between law and morality; but he was also concerned
about the creeping contamination of legal science by psychology
and sociology. For an objective legal science to be possible it had
to be doubly pure. 17
For many jurists Kelsen is the greatest legal positivist. More attention
has been paid to him than to any other jurist this century: the
"Kelsen industry" includes biographies, rival interpretations, and a
host of critics. Let me rush in with a heretical interpretation that
suggests that Kelsen's Pure Theory of Law provides the most cogent
support for the idea that a pure expository science of law is
impossible. 18
Kelsen's central question was: "Is an objective legal science possible?"
If one treats this as an epistemological question about the
possibility and nature of legal knowledge, it can be interpreted to
mean: "If pure knowledge of law is possible, what would it be
knowledge of?" Kelsen's answer is a unitary system of norms, hierarchically
arranged, and deriving their validity from a single basic
norm. 19 What this implies is that pure legal knowledge is knowledge
of a formal structure of norms. It is neither empirical nor
grounded in ethics. However, Kelsen himself emphasised that this
structure is independent of content; as soon as one attributes substantive
content to a single norm, impurities inevitably enter in. 20
If by exposition of doctrine we mean the activity of describing its
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