Some confusions around Kelsen's concept of validity

Abstract

The concept of validity employed in Kelsen’s theory is a central issue of discussion in contemporary Jurisprudence. This article puts forward the thesis that that concept has been misinterpreted in so far as its normative nature, which it shares with the notion of validity used by natural law philosophers, has not been sufficiently grasped. Once this feature of the Kelsenian concept of validity is taken into account, many problems in the interpretation of the Pure Theory vanish and some of its shortcomings are brought to notice. Some wrong accounts of Kelsen’s notion of validity are discussed in the article. Finally, some hypotheses are suggested in order to explain why Kelsen includes in his theory a notion of validity which is apparently inconsistent with its basic postulations.