A Reappraisal of Kelsen’s Rejection of the Natural-Law Doctrine

Kelsen’s article ‘The Natural Law Doctrine before the Tribunal of Science’ was published in 1949. It amounted to a powerful attack on the natural law doctrine. Among other things, Kelsen argued that the natural law doctrine inevitably relies on the existence of God or a similar supreme, transcendental being. This claim seems to be based on a number of inter-related assertions: first, that the natural law doctrine attempts to provide a definitive answer to the question of what justice requires; second, that it attempts to derive this answer from the nature of reality and that this is only possible if nature has a will and intelligence which, in turn, suggests a ‘superhuman’ being underlying nature; third, that the rules of ethics or jurisprudence are norms which could only be derived, ultimately, from a general norm willed by a human or superhuman being and that, because humans have different opinions about what justice requires, we must assume that the authority issuing the norm is a superhuman being if the general norm is to have an absolute value; and, fourth, if we do not assume that there is a divine will in the reality from which we attempt to derive normative values, we are reduced to trying to derive an ought from an is. Kelsen also asserts that such reliance on God, or other superhuman being, is not acceptable before the tribunal of science. In this paper, I explore and challenge these claims. I argue that, while they may be true of some conceptions of the natural law doctrine, they are not true of all versions and that Kelsen’s arguments are based on a partial account of the natural law tradition.